iplli|!.lil>Siln!nfc::lh|^W;i'aw^^ 


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UNIVERSITY 

01    C  ALirORMA 

LO.^  ANGELES 


SCHCX5L  OP  DWV 
LIllRARY 


A  T  R  E  A  T  1  -  L 

<»fk     Till 

1'l,i;Ri|;\|.\N('i;iin'(i.\Tll.\iTS 

IHl-   HON    SIK  HUWARD  FRV. 


M    J^V*-^      •'   »^    ••   » 


ktxi  r«t»»«  <4  I'atTvratly 


THE  1>  EDITION 


THE  .\rTHOU  AM.  WM    Im)NALI»S()N  HAWLINS. 


THIHI»  AMERICAN  EDITION. 

WITH  KEFEHKN'  »  T<»  TIIF.  LATD«T  AMERICAN  C  AM>. 

■T 

WILLIAM    M     SCOTT, 


..  I  -I  ll..    I..' 


U>-Tnimt<w  "  Vol  II   IV-.k  I.  ni»|.  7 


AI.HAN  \  .  ;-     * 

WEARE  0.  Lini.K  &  CO..  LAW  IV^'iKl^KU.KHS. 


Entered  according  lo  Aci  of  CongrcM,  in  U>f  year  I804« 
Hy  WKAHE  C    little  Jt  CO  . 

In  the  offlco  of  \]w  Librarian  of  CongrvM,  at  \Va%3.inct.  n 


Ricei  Printing  «nd  PuMiihln([  Com(i«»T, 

PRINTING,  BINDING  AND  ELECTROTYPING, 

•1«1  Broadwsy,  Albany,  N.  Y. 


n;  r,  iw  i 


it  lillKli  AMhKRA.N   hi»lll".\ 


•  H»*rfornmiicf  of  C'nii- 
tni  IS  that  <»f  Willlnm  8.  Schuyler,  E«q.»  Coun84»l<)r 

ai  l*aw  ;  jt  Ij.ih  '-•••n  out  of  print  for  »<»ineilnit»,  having  Ixn-n 
|.i.  Ih*  wnnl  <»f  II  new  edition  han  l>«t»n  felt 

by  th*-  HI  Kn^land,  an  in  this  country,  nnd  ns  a 

mall  •  an  Kn^'lii^h  e»Ulion  t  the  cases  down 

Hit.  t^li  hw  third  American  editl<in  is  r»*siy>nHiMe 

fur  lh«»  no-  ir  1871,  to  the  i»r»'?*^nl  !ini»» ;  if  the 

whiru  lit-  iia-  :i<iie<i  have  not  ejMwntially  ini]>n»ve<l 
iiK-  value  of  the  nrij^inal  wiirk,  they  will  n«»t  pn^vi-nt  that 
from  be<'omlnK  u*  the  Anu'ri<*an  lawyer  what  the  U'st  re- 
risors  in  Kn^hind  have  pn^nouncecl  to  be  a  work  in  which 
•*the  law  ni^in  ih»*  subject  it  trvatetl  of,  wa.**  acruraiely 
dijfesle*!,  and  carvfullv  Mated  ;  and  for  conipleteneHN  and 
«w»nndnei%^  likely  to  liecome  the  text  b<H»k  ujKin  the  law  of 
'»j—  iiio  Performance  of  Contract*." 


•^.  I'lVJ^  \«  F 


The  contents,  ana  ina-x.  n:n.  ..^.  i.  ■  aiefullv  r^y\^l  ana 
caused  to  cc.iTesponcl  with  tlie  i«ge<  -^  '1-  thini  American 
eilition.  ^y    y^    ^ 


I'l;  I.I  A  (  K 

H)  Til  >X1>  EIiITION, 


w^.t••  nnd  i»uMinh«nl  the  following  trvntim*:  and  in  that 
•»;  I  f  Mill.-  ji'-At  .  Iirni '.•>  li  IV..  !k.M.n  efftH'teti  in  tin*  law  - 
an  .  .  :irn/   mh    rJif   siil.l...f    .if 

r!.>  ••-%'iay  hn»  \m-r-ii  y. 

I  must  exiM*ct  «  «•  ;  iticlsm  for  thij*  second  e<lition 

than  that  with  whirh  the  fip*i  tnlition  was  nt-eived :  Imr 
I  itii  niiiv  that  the  kindness  which  I  have  always  received 
fn»ni  ihf  ni«*nilien  of  my  profe^nion  will  nut  fail  me  now. 

There  la  one  notion  often  expn'^^vil  with  r»'^Tird  to  works 
written  or  revi«*e<l  by  authors  on  the  Iknirh,  which  seems 
t..  Ill-  in  i«ari  at  l»twt  em>ne<»u.H,  the  notion  I  Mi»*an  that 
tlu'V  IJOVWH.S  aquosijmlicial  authority.  It  is  hardly  enon^^h 
rememljereil  lu»w  diffen-nt  are  the  circumstances  under 
which  a  >»<K>k  is  written  and  a  ju<l^mient  ]»rononnced,  or 
how  much  the  wei^dit  and  value  of  the  latter  are  <lue  to  the 
di9<*ustions  at  the  har  which  precede  the  judj^ment. 

77«ii33H 


VI  PREFACE. 

I  have  revised  or  re\viitten  or  written  the  following  parts 
of  the  present  volume,  viz. : 

Part      I.— The  whole. 
^*         II. — The  whole,  except  part  of  Chapter  II. 
"       III.— The  whole,  except  Chapter  XXV. 
"         v.— Chapter  V. 
"       VI. — The  whole,  except  Chapter  IX. 

The  Xlth  Chapter  of  Part  III.  (that  on  the  Statute  of 
Frauds)  was  originally  revised  for  me  by  another  hand  and 
may  retain  some  traces  of  a  difference  of  style :  and  in  other 
parts  I  received  some  assistance  from  my  former  pupil  and 
friend,  the  late  Mr.  H.  W.  May.  By  far  the  greater  part 
of  this  work  of  revision  and  rewriting  was  done  by  me  be- 
fore leaving  the  bar.  These  parts  of  the  work  have  been 
subsequently  revised  and  brought  down  to  date  by  the 
labors  of  Mr.  Rawlins. 

The  revision  of  the  other  parts  of  the  volume,  namely : — 

Part    II.— Part  of  Chapter  II. 
III.— Chapter  XXV. 
IV.— The  whole. 
"         V. — The  whole,  except  Chapter  V. 
VL —Chapter  IX. 

has  been  undertaken  by  Mr.  Rawlins  alone.  He  has  con- 
sulted me  on  various  points  which  have  arisen,  especially 
on  the  general  arrangement  of  some  of  the  chapters ;  but 
the  whole  merit  of  this  work  is  his. 


rriKKA(  K.  vii 

To  him  also  is  dun  rlie  entirely  ii.-w  Ind.'x.  \vhi<h  will.  I 
hope  and  believe,  be  found  a  valuable  part  of  the  book. 

My  thanks  are  due  to  Professor  Holland,  of  Oxford,  f(»r 

kind  assistance,  the  nature  of  which  will  be  learned  from 

the  additional  note  at  the  end  of  the  volume. 

E.  F. 
Lincoln's  Inn,  May,  lasi. 


PREFACE 

TO  THE  FIRST  EDITION. 


The  following  papers  contain  an  attempt  to  enquire  into 
the  principles  which  govern  Courts  of  Equity  in  the  Spe- 
cific Performance  of  Contracts.  I  offer  this  little  book  to 
the  members  of  my  profession,  with  somewhat  of  hope,  be- 
cause I  know  the  indulgence  with  which  they  are  w^ont  to 
accept  the  results  of  honest  labor  spent  on  professional 
subjects :  but  with  much  more  of  diffidence,  because  I  am 
not  ignorant  of  the  difficulties  of  the  subject  on  which  I 
have  written,  or  the  shortcomings  of  my  own  performance. 

The  scope  and  object  of  my  essay  will  be  sufficiently 
learned  from  the  table  of  contents.  It  will  at  once  be  seen 
that  they  are  essentially  different  from  those  of  the  admir- 
able works  of  Lord  St.  Leonards  and  Mr.  Dart  on  the  Law 
of  Vendors  and  Purchasers.  Those  treatises  discuss  the 
contract  of  sale  of  real  estate  and  all  the  relations  thence 
arising,  so  that  the  doctrine  of  specific  performance  is 
treated  of  only  as  one  mode  in  which  that  contract  is  en- 
forced :  whilst  the  present  work  is  designed  to  elucidate 
the  principles  of  specific  performance  in  general,  and  the 


PEEFACE.  ix 

contract  of  sale  only  so  far  as  it  requires  attention  as  one  of 
the  contracts  wliicli  the  court  enforces.  If  the  object  of 
those  learned  treatises  had  not  been  thus  distinct  from  that 
of  the  following  pages,  I  should  never  have  thought  of  com- 
mitting them  to  the  press. 

The  connection  of  the  different  branches  of  law  is,  like 
the  connection  of  the  sciences,  so  close  as  often  to  embarrass 
the  writer  who  attempts  to  treat  of  one  subject  by  itself.  I 
have  found  this  difficulty  continually  recurring,  as  I  have 
been  engaged  in  composing  this  book,  because  it  is  by  no 
means  easy  to  decide  how  much  of  the  law  on  many  ques- 
tions ought  to  ffud  place  in  a  treatise  on  the  x:)rinciples  and 
practice  of  the  courts  in  specific  performance,  and  how 
much  ought  to  be  referred  to  a  discussion  of  the  particular 
species  of  contract  to  which  the  j^oint  may  relate.  I  have 
endeavored  on  each  occasion  to  solve  this  question  with  a 
view  to  the  practical  utility  of  the  following  pages,  and  to 
what  I  suppose  a  lawyer  would  reasonably  expect  to  find 
in  a  treatise  bearing  the  title  of  this  volume. 

Several  important  decisions  on  the  subject  of  specific  per- 
formance have  appeared  during  the  progress  of  these  pages 
through  the  press,  which  I  have  found  it  impracticable  to 
embody  in  the  text :  some  of  these  cases  have  been  referred 
to  in  the  notes,  and  others  only  in  the  table  of  addenda,  to 
which  the  reader  is  referred. 

My  friend  Mr.  J.  P.  Green,  of  the  Middle  Temi)le,   has 

obligingly  read  the  proof-sheets  of  this  book  :  I  gratefully' 

acknov/ledge  his  kindness  in  so  doing. 

E.  F ' 

5,  New  Square,  Lincolt^'s  Inn,  24th  May^  1-858, 


TABLE  OF  CONTENTS. 


PART  I. 

OF   THE   .JURISDICTION. 


CHAPTER  I. 

OF   THE   ORIGIN   AND   GENER'AL  CHARACTER   OF   THE   JURISDICTION. 

PAGE. 

What  a  coutract  is ^ 

What  specific  performance  is 2 

The  obligation  arising  from  a  contract 2 

Few  systems  of  jurisprudence  enforce  specific  performance ;  3 

Roman  Law  gave  damages  only 3 

So  too  Common  Law 3 

Suggested  reason  of  this ° 

The  principle  of  Charondas 3 

■  Cases  in  which  Common  Law  approached  specific  performance 4 

i.  The  prerogative  writ  of  mandamus 4 

The  statutory  writ  of  mandamus 4 

ii.  Delivery  of  chattels 5 

Return  of  chattels  not  specific  performance 5 

iii.  Contract  for  payment  of  a  sum  of  money 5 

iv.  Writ  of  covenant " 

Former  jurisdiction  of  Ecclesiastical  Courts 6 

Origin  of  the  equitable  jurisdiction  in  specific  performance 6 

Early  history  of  the  jurisdiction 6 

Jealousy  on  the  part  of  Common  Law  Courts 8 

The  jurisdiction  in  specific  performance  distinguished 9 

from  performance  of  trusts ^ 

from  delivery  of  chattel  in  specie 9 

from  cases  of  constructive  trust 10 

from  specific  relief 1" 

The  jurisdiction  discretionary ^^ 


Xll  CONTENTS. 

CHAPTER  II. 

OF   THE  EXTENT   OF   THE   JURISDICTION. 

PAGE. 

Not  all  kinds  of  contracts  enforced 12 

Extent  and  limit  of  the  jurisdiction 12 

1.  Where  there  is  no  Common  Law  remedy. 

Ground  of  interference  of  Equity lo 

Contracts  differently  regarded  at  Common  Law  and  in  Equity 15 

Common  Law  remedy  lost  by  default  of  plaintiff 15 

Common  Law  remedy  unavailable  from  something  in  the  contract 16 

or  from  the  nature  of  the  contract 16 

Contracts  to  execute  mortgage  or  lend  money 17 

Advance  on  security  of  leaseholds 18 

Deposit  of  title-deeds 18 

Remedy  by  damages  prevented  by  death 18 

by  marriage 10 

unavailable  from  form  of  contract 13 

Former  practice  of  Court  of  Chancery 20 

2.  Wliere  there  is  no  adequate  Common  Laxc  remedy. 

3.  Where  there  is  an  adequate  Common  Law  remedy. 

The  propositions  stated 21 

Common  Law  remedy  inadequate ' 22 

Common  Law  remedy  less  beneficial 22 

Doctrine  of  Leach,  V.  C 23 

Cases  where  Common  Law  remedy  is  adequate 23 

Contract  for  yearly  tenancy 24 

Contract  to  make  railway 25 

Contract  to  pay  money 25 

Alternative  remedy 25 

Contract  enforced  by  vendor 25 

Government  stock .  .  26 

Shares  in  companies 27 

Actions  on  contracts  to  take  shares 28 

Chattels '. 28 

Unique  articles . . ' 28 

Tort,  trust,  and  contract 30 

Dictum  of  Lord  Westbury 82 

Vendor  plaintiff 33 

Price  agreed  on    33 

Chattels  not  unique  but  of  peculiar  importance 33  • 

Where  a  particular  article  is  essential  or  only  convenient 33 

Chattels  connected  with  enjoyment  of  estate 33 

Contracts  to  build 34 

Trust  constituted 34 

Contracts  to  be  performed  by  instalments 35 


CUXTEXTS.  Xill 

PAGE 

4.  Where  the  contract  is  such  a>i  the  court  cannot  perform. 

iQcapacily  of  court  to  execute  contract . .  35 

Breaches  frequent 36 

Goodwill  of  a  business 36 

5.  Where  tJie  performance  of  the  contract  would  be  useless. 

Revocable  contracts 37 

Contract  to  enter  into  partnership  at  will 38 

Contract  to  become  member  of  company 38 

Contract  to  execute  revocable  instrument 38 

6.  Where  the  court  would  be  unable  to  enforce  its  judgment. 

Contracts  to  build  and  execute  works 39 

Cases  where  performance  has  been  refused 40 

Lord  Cairns'  Act 41 

Exceptions — 

a.  "Where  the  work  is  defined  and  essential  to  the  plaintiff 41 

b.  Where  the  defendants  have  also  obtained  possession  under  the 

contract 41 

Contract  to  make  siding 42 

to  erect  market-house 42 

Amount  of  damages  unascertainable  b\-  plaintiff 42 

Act  of  part-performance  answerable  in  damages 43 

Covenant  to  keep  canal  in  repair 43 

7.  WJtere  the  enforcement  of  the  contract  would  he  worse   than   non 

performance. 

Hiring  and  service 43 

Such  contracts  formerly  enforced 43 

Secus  now 44 

Contracts  of  agency 45 

8.  Where  the  contract  is  voluntary. 

Where  no  consideration 46 

Where  no  right  to  property  affected 47 

9.  T]7(f  r^  the  plaintiff  has  elected  to  proceed  in  some  other  manner  than 

for  specific  performance. 

Where  plaintiff  proceeded  at  Law 47 

Opinion  of  Knight  Bruce  L.  J 47 

of  Lord  Cranworlh 47 

Proceedings  under  Lands  Clauses  Act 47 

Present  practice 48 

10.  TT7(^r<:  the  jurisdiction  has  been  taken  away  by  statute. 

Fines  and  Recoveries  Act ^8 


XIV  CONTENTS. 

PAGE. 

11.   The  jurisdiction  is  agai?ist  tM  defendant  personally. 

Equity  acts  against  the  person "*° 

Where  defendant  is  not  subject  to  the  jurisdiction 'IS 

Where  the  court  had  originally  no  jurisdiction - 48 

Foreign  contracts 49 

Contracts  relating  to  immovable  property • 49 

There  must  be  privity  of  contract 50 

Mr.  Justice  Story  on  the  English  doctrine 50 

12.   Quasi-contracts  in  respect  to  irJiicTi  the  court  has  jurisdiction. 

Quasi-contracts  under  Lands  Clauses  Act 51 

Effect  of  notice  to  treat 52 

Procedure  after  the  notice 52 

Refusal  to  proceed  after  the  notice 52 

The  company  forced  to  proceed 52 

Parliamentary  contract '■ 53 

Where  notice  followed  by  a  contract 53 

CHAPTER  III. 

OF   CONTRACTS  "WITH   A  PENAL   OR   OTHER  LIKE   SUM. 

Effect  on  the  jurisdiction  55 

The  question  stated 55 

i.  Contract  with  a  penalty  strictly  so-called 56 

Contract  not  to  carry  on  business 57 

ii.  Distinction  between  penalty  and  liquidated  damages    57 

Condition  for  recovery  of  deficiency  on  re-sale 58 

Where  contract  and  obligation  to  pay  are  distinct 59 

Where  election  not  imported 60 

iii.  Alternative  contracts 60 

Intention  primarily  governs  construction 60 

Alternative  form  not  conclusive 61 

The  amount  of  the  penalty 62 

The  benefit  of  the  penalty  and  the  contract  resulting  to  different  persons. .  64 

Single  sum  and  continuing  act 64 

Sum  variable 64 

Wherere  there  is  a  forfeiture  in  addition 65 

Where  the  contract  is  reasonable  only  as  an  alternative  one 65 


CO]^TENTS.  XV 


PART  11. 

PARTIES    TO   THE   ACTION. 


PAGB- 

.     66 


CHAPTER  I. 

OF   THE   GENERAL   RULE. 

Division  of  the  subject 

1.  As  to  the  former  practice  oftfie  Court  of  Chancery. 

The  general  rule  stated "^ 

Stranger  necessary  party  to  conveyance "' 

Same  property  sold  twice  over "^ 

Purchasers  of  diflfereut  lots  held  under  same  lease 69 

Effect  of  a  direction  that  A.  should  convey ^ 

Where  the  suit  had  several  objects '  ^ 

Tenant  of  vendor *" 

Persons  having  adverse  rights '^ 

Exceptions  to  the  general  rule '-' 

Novation '  "^ 

Sales  on  the  Stock  Exchange "^^ 

Stranger  "^ 

Interest  under  prior  contract '  ** 

Remainderman  'J* 

Reversioner  ' 

Objection  precluded  by  pleading '* 

Some  suing  or  sued  on  behalf  of  all '* 

Avoiding  multiplicity  of  suits '  -* 

"Where  one  lot  sold  involved  with  adjoining  lot "''^ 

77 
Adverse  claimants     

Voluntary  settlement ^ 

Multifariousness  

Several  contracts  in  one  suit '^ 

2.  As  regards  the  practice  of  the  High  Court. 

79^ 
The  general  rule 

Provisions  of  the  Rules  of  Court  as  to  parties '^^ 

Result  of  third-party  rules "-^ 

Bare  trustee •• 

80 
Unpaid  legatees 

Counterclaim "_ 

Registered  land 


XVI  CONTENTS. 

CHAPTER  II. 

OF   A   STRANGER  TO   THE   CONTRACT. 

PAGE, 

Division  of  the  subject 82 

1.  As  to  a  Dt ranger. 

Generally  a  stranger  cannot  sue 82 

Apparent  exceptions  to  the  rule 83 

(i.)  Cestui gue.trust  of  contract 83 

(11.)  Agency 83 

(Hi. )  Executed  contracts 84 

(iv. )  Near  relationship 84 

(v.)  Change  in  condition  of  life 85 

2.  As  to  a  stranger  being  sued. 

:  Generally  a  stranger  cannot  be  sued 86 

Exception  if  he  gets  possession  of  the  subject-matter  with  notice b6 

■  Stranger  claiming  benefit  resulting  from  the  contract 87 

Where  part  of  relief  might  effect  person  In  possession 87 

jExceptions  under.statutory  provisions 87 

CHAPTER  III. 

OF  THE  DEATH  OF  A  PARTY  TO  THE  CONTRACT. 

'Death  of  a  party 88 

fDeath  of  vendor gg 

'  Trustee  Act,  1850 , 90 

Widow  90 

Contract  enforced  by  creditors 90 

Executors  suing  before  probate 91 

Death  of  purchaser 91 

Heir  or  devisee 91 

Vendor  ordered  to  revive 92 

.Death  of  proposed  lessee 92 

Discharge  of  the  contract  by  death— where  personal  qualities  required 92 

CHAPTER  IV. 

OF  AN  ASSIGNMENT  OF  THE  CONTRACT  OR  OF  THE  PROPERTY. 

Assignment  of  the  contract 93 

Assignment  by  way  of  mortgage 95 

Exceptions og 

(i.)  Where  the  contract  is  personal gg 

;  Contracts  for  leases  ^ 

Where  there  is  a  set-off ng 

Where  some  previous  personal  relation gg 


CONTENTS.  Xvii 

PAGE. 

Pothier  on  error  in  regard  to  the  person  contracted  with 98 

The  principle  illustrated 99 

(ii.)  Where  there  is  proviso  against  assignment 99 

(iii. )  Illegality  of  assignment 99 

Transfer  of  expectancy 100 

Maintenance 100 

Public  trust 101 

Offer  not  assignable  Iqo 

The  rights  of  the  assign  of  the  contract 102 

Extent  of  the  assign's  right IO3 

Assignment  of  the  property Iqo 

Assign  a  defendant 102 

Unregistered  contracts  in  register  counties ...  103 

Owner  of  prior  title  affected  by  notice 103 

Effect  of  notice  in  cases  of  executed  contracts lO.j 

•Contracts  to  devise  lands j  O.5 

Amalgamation  of  companies jOo 

Bankruptcy  of  contractor 106 


CHAPTER  V. 

■OF   THE   LIABILITY   OF   COMPANIES    FOR    THE    CONTRACTS   OF     THEIR    PRO- 
MOTERS. 

The  doctrine  introduced  by  Lord  Cottenham 107 

Conditions  under  which  the  doctrine  is  applicable lOS 

.(i.)  The  company  must  have  taken  the  benefit  of  the  contract 108 

Contract  intra  vires  and  beneticial 110 

(ii.)  The  contract  must  have  been  warranted  by  the  terms  of  incorporation  110 

Contract  rdtra  vires 110 

Doubts  thrown  on  the  doctrine Ill 

State  of  the  authorities 112 


CHAPTER  VI. 

OF   AGENCY. 

Contracts  by  agents 113 

Agent  appearing  on  the  contracts  as  such 113 

Agents  appearing  on  the  contracts  as  principals 113 

Principals  suing  and  being  sued 115 

Agents  not  generally  parties 117 

Question  whether  party  is  principal  or  agent 117 

Both  principal  and  agent  sued 117 

Directors Hy 

Agent  suing  118 

Agent  sued Hg 

•Cases  where  agent  a  proper  party 119 

(i. )  Agent  claiming  intererst 119 

(ii.)  By  reason  of  the  form  of  the  contract 119 

B  . 


Xviii  CONTENTS. 


yAGB. 

.   119 


(iii.)  Stakeholder 

Cases  where  stakeholders  made  parties 

The  proper  practice  in  such  cases ^"^ 

Auctioneers,  etc. ,  who  are  and  are  not  stakeholders 120 


PART  III. 

OF   THE  DEFENSES   TO   THE   ACTION. 


CHAPTER  I 

OF   THE  IXCAPACITY   TO   CONTKACT 

Nature  of  the  defense 1-^* 

When  incapacity  to  be  judged  of 124 

Married  women 12^ 

Their  general  engagements  126 

Contract  by  married  women  to  take  lease 127 

"Where  no  power  of  anticipation 1 27 

Contract  under  power  informally  exercised l''^7 

Parties  to  action  in  respect  of  separate  estate 127 

Real  estate  of  married  women 128 

Contracts  between  husband  and  wife 128 

Contract  of  married  woman  trustee 129 

Lunatics 129 

Subsequent  lunacy  of  a  party  to  a  contract 130 

Persons  standing  in  confidential  relations 130 


CHAPTER  II. 

OF  THE  NON-CONCLUSION  OF  THE  CONTRACT 

There  must  be  a  concluded  contract 131 

Onus  of  proof  is  on  plaintiff 131 

When  the  question  of  construction 131 

Where  there  is  a  formal  document 131 

Is  the  instrument  a  contract 131 

Judge's  order 131 

Instructions  for  a  settlement 131 

Articles  of  Association 131 

Recital 131 

Negctiation  is  not  contract 132 

Proposal  and  acceptance  132 

Essentials  of  acceptance    133 

Acceptance  must  be  unequivocal 133 


CONTENTS.  XIX 

PASB. 

Acceptance  must  be  uncomlitioual 135 

Acceptance  must  be  without  variance  from  the  offer 136 

Acceptance  must  not  introduce  anj^  new  term 130 

Acceptance  subject  to  title  being  approved  by  solicitors 137 

■\Vbat  is  not  a  new  term 137 

Nugatory  variations    138 

Reference  to  mode  of  execution 138 

Indulgence  granted  by  acceptor 138 

Acceptance  must  be  communicated 139 

And  that  witbout  unreasonable  delaj"- 139 

"Wbat  determines  the  proposal 140 

(i.)  Withdrawal 140 

Notwithstanding  time  for  acceptance  prescribed 141 

Express  notice  of  withdrawal  not  needful 141 

Notice  imder  right  of  pre-emption 141 

(ii.)  Refusal 141 

Variations  of  the  proposal  1 42 

Writing  signed  by  one  party  sufficient 143 

Plaintiff's  acceptance  need  not  be  in  writing 143 

Acceptance  by  acts 1 44 

Defendant's  acceptance  must  be  in  writing 144 

Time  at  which  the  contract  is  constituted 144 

Posting  letter    144 

Where  there  is  an  agent  for  the  proposer 145 

Representation  and  conduct 146 

Representation  of  things  past 14f> 

Representation  of  things  future 147 

Representation  must  be  clear  and  absolute 147 

Where  the  engagement  is  merely  honorary 14S 

Subsequent  settlement  silent  as  to  promise 15U 

Where  the  promise  did  not  induce  the  marriage 150 

Cases  where  representation  has  been  held  binding 150 

Marriage  contracts loO 

Distinction  between  written  and  verbal  proposal 151 

The  principle  long  established 151 

Representations  by  stranger loS 


CHAPTER  III. 

OF  THE  INCOMPLETENESS  OF  THE  CONTRACT. 

Contracts  must  be  certain,  fair,  and  just 155 

Where  objection  made  after  part  performance 155 

Completeness,  fairness,  and  certainty,  how  to  be  explained 156 

Incompleteness  may  be  in  contract  or  evidence 156 

Completeness  to  be  ascertained  at  commencement  of  proceedings 156 

Exceptions ^  56 

(i.)  When  incompleteness  arises  from  fault  of  defendant 156 

(ii.)  Or  may  be  made  good  from  the  contract  itself 167 


XX  CONTENTS. 

P(GE. 

Complcteuess  to  be  considered ^  ■ '~ 

(i.)  As  to  subject-matter 1  '^"^ 

Pleading 1"'9 

What  definiteness  required ■ ^^'^ 

Where  subject-matter  ascertainable  though  not  ascertained    l'"9 

Subject-matter  ascertained  by  election 160 

(ii.)  As  to  the  parties • 160 

Description  instead  of  name 161 

Lord  Cairns'  statement  of  the  law 161 

Descriptions  held  sufficient 161 

Description  held  insufficient 162 

(iii.)  As  to  price 162 

Cases  where  price  not  ascertained 163 

Contract  need  not  precisely  determine  the  price 163 

Where  a  mode  of  determining  the  price  prescribed 163 

Where  mode  of  ascertainment  essential 163 

Ascertainment  by  valuers  to  be  named 163 

Lord  Bacon's  maxim 163 

Doctrine  of  the  Roman  Law 164 

Valuers  are  not  arbitrators 164 

First  class  of  cases 164 

Difficulty  occasioned  by  defendant's  default , 165 

Second  class  of  cases 166 

Contracts  to  sell  at  a  fair  price 166 

The  distinction  between  the  two  classes  of  cases  illustrated 166 

(iv.)  As  to  other  terms  of  the  contract 168 

Instances  of  contracts  held  incomplete 158 

Some  matter  left  for  future  agreement 169 

Contract  referring  to  third  person's  decision 169 

Implied  terms 169 

Condition  for  good  title  implied 170 

Conditions  may  be  waived 170 

Contract  for  underlease 170 

Implication  as  to  usual  stipulations' 171 

Implied  terms  rebutted  by  a  condition  or  by  notice 171 

Where  material  term  cannot  be  supplied,  no  performance 171 


CHAPTER  IV. 

OP  THE  UNCERTAINTY  OP  THE  CONTRACT. 

What  amount  of  certainty  required 173 

Original  uncertainty  removed 176 

Indefinite  words 176 

Instances  of  uncertain  contracts 177 

Less  certainty  required  where  there  is  fraud 180 


CONTENTS.  XXI 

CHAPTER  V. 

OF   THE   WANT   OF   FAUtNES-S   IN   THE    CONTRACT. 

Nature  of  the  fairness  required l"^! 

Unfairness  in  the  terms  or  in  extrinsic  matters l^i 

When  ascertained l'?^ 

Where  there  is  a  condition  to  be  performed 1^3 

Compromises  and  family  settlements 183 

Contracts  involving  contingencies : l'*4 

The  contingency  must  be  really  such  to  both  parties 1!?'* 

The  contingency  must  have  been  understood  to  be  within  the  contract. ...  l^'t 

Contracts  to  sell  at  a  price  to  be  fixed 1  ^0 

Amount  of  rent  to  be  fixed \^fi 

Fairness  of  surrounding  circumstances 1H7 

Court  slow  to  act  where  circumstances  saspicious 1S7 

Intentional  unfairness  not  necessary  to  be  proved 18S 

Misstatements 188 

Silence  or  suppresio  veri 188 

Intoxication 1^ 

Contract  injurious  to  third  persons 18t» 

Secret  guarantee 1  J^J* 

Sale  bj-  a  voluntary  settlor l^*) 

Contracts  necessitating  a  breach  of  trust 15'0 

Where  condition  for  compensation IWl 

The  objection  precluded  by  the  conditions  of  sale 15'1 

Unbusinesslike  contract 192 

Cases  of  ])reach  of  duty 1&2 

Rescinding  contract  on  this  ground 192 

Injury  to  the  public 192 

CHAPTER  VI. 

OF    THE    II.\KDSHIP    OF   THE   CONTRACT. 

Hardship  a  bar  tu  the  court's  interference 1  ".'J 

When  to  be  judged  of 193 

Instances  of  subsequent  circumstances  disregarded 194 

Submission  and  awards 19.'> 

lustances  of  subsequent  events  regarded Ut5 

subsequent  events  dependent  on  plaintiff I'.'G 

Plaintiff's  subsequent  conduct  a  trap 1  i'T 

Distinction  between  patent  and  latent  hardship 197 

Hardship  brought  upon  the  defendant  by  himself 198 

Failure  of  party's  scheme 198 

Hardship  on  members  of  a  corporation 19b 

Forfeiture  a  circumstance  of  hardship 199 

Exceptions 199 

Where  vendor  would  be  left  subject  to  a  liability 2(K) 

Other  instances  of  hardship '-ioO 


XXU  CONTENTS, 

PAGE. 

Liability  disregarded 200 

Miscellaneous  instauces  of  hardship 201 

Impossibility  of  enjoying  the  thing  purchased 201 

The  principle  applied  in  contracts  between  companies 202 

Inadequacy  of  consideration 202 


CHAPTER  VII. 

OF   INADEQUACY   OF    THE   CONSIDERATION 

How  it  may  appear  in  the  contract 203 

Difference  of  cases  between  vendor  and  jDurchaser  203 

Inadequacy  with  other  circumstances 203 

Inadequacy  by  itself 204 

As  a  ground  for  setting  aside  contracts 204 

As  a  defense  to  specific  performance 205 

Mere  inadequacy  not  a  defense 206 

Reason  of  the  rule  208 

The  laws  of  Rome  and  France 209 

When  the  inadequacy  is  to  be  ascertained 210 

Sale  at  a  price  to  be  fixed 210 

Effect  of  under-valuation , 210 

Sales  of  reversions 211 

Before  the  Sales  of  Reversions  Act 211 

"Where  the  prmciple  did  not  apply 211 

Present  interest  relatively  small 211 

Sale  by  auction 212 

The  Act  31  Vict.  c.  4 212 

Effect  of  the  Acts  as  to  actions  for  rescission 212 

As  to  specific  performance 218 

Origin  of  rule  as  to  burthen  of  proof 213 


CHAPTER  VIII. 

OR   WAJTT   OF   MUTUALITY   IN   THE   CONTRACT. 

Mutuality  required 214 

Contracts  under  powers 216 

Time  at  which  mutuality  is  to  be  judged  of 216 

Exceptions 217 

(i. )  Unilateral  contracts 217 

(ii.)  Waiver  217 

(iii.)  Contract  signed  by  one  party  only 218 

Reason  of  this  last  exception 218 

Contract  in  deep  poll 219 

(iv. )  Where  vendor  has  only  partial  interest 219 

Doubts  of  Lord  Redesdale 219 

The  principle  is  well  established 220 


COXTKNTS.  XXm 

CHAPTER  IX. 

OF   THE   ILLEGALITY   OF  THE   CONTUACT. 


FA«B. 


Illegality  a  bar  to  performance  of  a  contract 

Foreign  contracts 223 

What  constitutes  illegality 223 

Peculiar  nature  of  the  defense 22-1 

Awards 228 

How  far  the  ilk-gulity  must  be  made  out 22S 

Where  a  trust  is  constituted 2^9 

The  principle  illustrated 229 

Trade  unions •• 230 


CHAPTER  X. 

OF  THE   COXTKACT   BEING   ULTRA   VIRES. 

Contracts  by  corporations  must  be  -within  their  powers 232 

But  are  presumed  to  be  good 232 

Where  the  presumption  is  rebutted 232 

Limitation  of  the  discussion 235 

Difference  between  ultra  vires  a  corporation  and  ultra  vires  its  agents 285 

Difference  of  the  question  between  corporations  and  between  corporation 

and  strangers 236 

Where  ultra  vires  is  and  is  not  a  defense 237 

Vendor  of  land  to  company  not  bound  to  see  that  it  is  strictly  required 238 

Irregularity --^^ 


CHAPTER  XI. 

Fourth  section  of  the  statute ~'^" 

Decision  that  the  section  refers  to  the  procedure _. 240 

The  statute  often  a  defense '-^^^ 

Division  of  the  subject ^^^ 

1.  IIoic  the  defense  may  be  raised. 

Reference  t©  the  former  practice -^^ 

Before  the  Judicature  Acts  the  statute  taken  advantage  of  by  demurrer. . .  242 

T>      1  '>42 

By  plea -^~ 

By  plea  and  answer '-"^^ 

By  answer "'*- 

Otherwise  not  at  the  hearing 2"^3 

The  present  practice ■'■*" 

How  the  statute  may  now  be  taken  advantage  of 243 

Not  by  plea J^"^"^ 

Where  statement  of  claim  does  not  allege  written  contract 243 

By  demurrer "^ 


XXIV  CONTENTS. 

PAaB. 

By  pleading  the  statute  specially 243 

The  benefit  of  the  statute  must  be  claimed  distinctly 243 

"Where  defendant  makes  default  in  pleading 243 

Where  no  pleading  at  all 243 

2.   What  satisfies  the  statute. 

Written  statement 244 

Nature  of  the  document  immaterial 245 

The  writing  must  express  a  concluded  contract  existing  at  the  time  when 

the  memorandum  was  signed 248 

Treaty  only 249 

Formal  contract  intended 249 

Where  first  document  is  not  binding 249 

The  law  stated  by  Jessel  M.  R , 251 

Solicitors  ' '  to  prepare  contract " 252 

Agreement  signed  by  one  party  only 252 

signature   253 

Must  be  a  writing  of  the  name 254 

In  pencil 254 

In  priut 254 

Initials 254 

How  far  intent  to  sign  necessary •. 254 

Incidental  introduction  of  name  for  different  purpose 255 

The  statute  a  weapon  of  defense,  not  offense 255 

Actual  signature  with  intent  to  authenticate  the  document 256 

Suggestion  as  to  the  true  principle 257 

Agent 257 

How  appointed 259 

Where  court  will  conclude  in  favor  of  agency 259 

Direct  evidence 259 

Inference 259 

Representation 259 

Ratification 259 

Essentials'  of  a  valid  ratification 262 

Auctioneer 262 

Authority  of  auctioneer 264 

Agent  of  agent 264 

Auctioneer's  clerk 264 

Solicitor 264 

Telegraph  clerk 265 

Revocation  of  agent's  authority 265 

Death  of  principal 265 

Agency  a  question  of  fact 265 

Letters 265 

(1. )  Letters  referred  to  for  signature 266 

Parol  evidence  admitted 266 

There  must  be  a  reference 267 

To  terms  in  writing 268 

How  far  reference  must  be  express 268 


CONTENTS.  XXV 

rA8B. 

Entry  in  auctioneer's  book 2(J>? 

Other  illustrations 269 

(3. )  Letters  to  suppl}'  a  term o^jrj 

(3.)  Letters  constituting  the  contract 270 

The  correspondence  must  be  considered  as  a  whole 270 

Letter  to  a  third  person 270 

Letters  repudiating  a  contract 870 

Parol  contract  before  marriage,  written  after 271 

Pleading  a  contract  within  the  statute 272 

Before  the  Judicature  Acts 272 

The  present  practice 272 

Contract  implied  from  letters,  conversations,  or  circumstances 273 

3.  What  takes  a  contract  out  of  the  statute. 

Sale  by  the  court,  admission,  fraud,  or  part-performance '.'73 

(1.)  Sale  by  the  court 273 

Ordinary  sale  by  auction  274 

(2. ■)  Admissions  in  pleadings    274 

Effect  of  admissions  under  present  practice 275 

Death  of  person  making  admission 275 

(3.)  Fraud 275 

Collateral  contract  277 

Fraudulent  refusal  to  recognize  collateral  parol  promise 277 

Provision  for  defeasance  or  redemption  fraudulent!)-  omitted 278 

Trustee  for  real  purchaser 278 

Principle  of  foregoing  cases 279 

Fraud  in  relation  to  marriage  articles 279 

Mere  non-performance  of  contract  to  sign  a  document 279 

Marriage  contract 280 

Wills  r 281 

(4.)  Part  performance 281 

Principle  of  the  exception 282 

Essentials 283 

(1. )  The  acts  must  refer  to  a  contract 284 

They  need  only  be  referred  to  some  contract  and   consistent  with   that 

alleged 284 

Mr.  Aust  in  quoted 285 

The  acts  must  not  be  referable  to  any  other  title 285 

(2.)  The  acts  must  render  non-performance  a  fraud 286 

Principle  stated  by  Lord  Cottenhum 2!^6 

No  relief  where  refusal  to  perform  is  no  fraud 287 

The  acts  must  be  done  with  the  knowledge  of  the  person  to  be  charged  . . .  287 

Acts  not  fraudulent  from  character  of  person 287 

from  the  nature  of  the  act 288 

from  their  being  alternative  remedies 288 

(3.)  The  contract  must  be  such  as  can  be  enforced 288 

Want  of  a  seal 289 

Engagement  of  an  honorary  character 289 

Incomplete  contract 290 

Where  possession  adverse    290 


XXVi  CONTEXTS. 

PAGE. 

Particular  acts  as  part-performance ~'^" 

Possession ^^ 

Possession  of  stranger  acknowledged ^'^^ 

Possession  acquiesced  in ^"-^ 

Possession  tells  for  and  against  both  parties  alike 292 

Possession  as  against  a  company 293 

Possesion  in  contracts  other  than  of  sale  or  lease 293 

Marriage  contracts 293 

Family  arrangements 294 

Effect  of  lapse  of  time 294 

Laying  out  of  money— how  different  from  possession 294 

Expenditure  and  other  acts  admitting  of  compensation 295 

Payment  of  purchase-money 295 

Why  not  an  act  of  part-performance 296 

Vacillation  of  the  law  ou  this  subject 296 

Payment  of  auction  dutj- 297 

Payment  of  additional  rent 297 

Review  of  the  cases  on  payments  as  part-performance 297 

Marriage 298 

Acts  connected  with  marriage 800 

3Iarriage  in  fraud  of  previous  parol  contract ...    300 

Cohabitation 300 

Previous  acts 300 

Preparatory  acts 30 1 

Surrender  of  lease 303 

(iv.)  The  evidence  of  the  contract 303 

Classification  of  the  cases 303 

(1 .)  Contract  admitted  in  pleadings 303 

(2. )  Contract  denied  by  defendant's  pleading 304 

(3.)  Variation  between  the  contracts  alleged  and  proved 304 

"What  variations  are  immaterial 305 

Inquiry 306 

The  present  practice 307 

(4.)  Alleged  contract  denied  but  another  admitted 307 

Part  reduced  to  writing 398 


CHAPTER  XII. 

OF   THE   FORMALITIES  REQUIRED   IN   CONTRACTS  BY   CORPORATIONS. 

Practical  importance  of  the  subject 309 

Contract  by  corporation  must  generally  be  under  common  seal 309 

Exceptions — 

(i.)  Some  contracts  of  trading  corporations 309 

(ii. )  Under  statutory  provisions 309 

Companies  Clauses  Act,  1845,  s.  97 309 

Companies  Act,  1867,  s.  37 310 

Former  statutory  provisions 3H 

(iii. )  From  the  doctrine  of  part -performance 311 

The  subject  more  fully  discussed  in  other  works 312 


CONTENTS.  XXVll 

CHAPTER  XIII. 

OF   MISREPRESENTATION. 

PA9E. 

Effect  of  a  misrepresentation 313 

Elements  of  a  misrepresentation 313 

Division  and  limitation  of  the  subject 316 

Misrepresentation,  how  related  to  fraud 316 

(1.)  A  statement  made  and  untrue 317 

Mere  silence 317 

When  a  statement  is  to  be  held  untrue 317 

(ii.)  The  making  of  it  by  a  party  or  his  agent  318 

What  agency  must  be  proved 318 

(iii.)  The  state  of  mind  of  the  party  making  the  statement 319 

Knowledge  of  the  error  or  falsity 319 

Misrepresentation  by  agent  in  common  law  actions 320 

Always  fatal  to  specific  performance 320 

In  equity  a  man  is  bound  by  inadvertent  misrepresentation 321 

(iv.)  The  intent  of  the  misrepresentation 322 

Purchaser  on  faith  of  prospectus  not  received  from  its  authors 323 

Earlier  cases  affected  by  Peck  v.  Gurney 323 

(v. )  The  reliance  on  the  statement 324 

The  statement  not  the  sole  inducement 325 

Vagueness  of  the  representations 325 

Vendor's  statements  must  be  unambiguous    327 

Commendation  by  vendor 327 

Other  grounds  for  considering  that  there  was  not  reliance 327 

Mere  presence  of  means  of  knowledge 32S 

Resort  to  other  means  of  knowledge 329 

Other  knowledge  itself 330 

Misrepresentation  of  law  331 

as  to  title 331 

Doctrine  of  Edwards  v.  McLeay  not  of  universal  application 331 

Where  defect  is  patent 332 

Analogy  with  warranties 333 

Evidence  of  knowledge  must  be  clear 333 

Other  means  of  knowledge  open  to  purchaser  not  enough 333 

Doctrine  of  notice  does  not  apply 383 

General  statement  inconsistent  with  the  misrepresentation  not  enough 334 

Rescission  for  misrepresentation 384 

Recommendation  to  other  party  to  consult  his  adviser 334 

Misrepresentation  as  to  lease 335 

as  to  character  of  building 335 

as  to  profits  of  theatre 335 

Sale  with  all  faults 335 

Assignment  of  a  contract  affected  bj'  misi-epresentation 335 

Statement  to  agent  known  by  principal  to  be  false 33(» 

(vi. )  The  misrepresentation  must  be  essential 336 

Cases  considered  under  head  of  fraud 336 


XXViii  CONTENTS. 

CHAPTER  XIV. 

OF  FRAUD. 

PAGE. 

Fraud  is  a  larger  word  than  misrepresentation 337 

comes  before  the  court  in  several  relations 337 

Fraud  in  obtaining  contract 3-37 

oori 

in  pert" orniing  contract '^^' 

Suppression  of  a  fact 338 

Silence ^^^ 

Obligation  to  disclose 339 

(i  )  Where  fiduciary  relationship 339 

(ii.)  Where  antecedent  wrong  done 340 

(iii.)  From  character  of  contract 341 

Latent  defect 341 

(iv.)  From  course  of  negotiation 341 

Lord  Blackburn  quoted 341 

Imperfect  statement 342 

(V.)  From  obligation  subsequent  to  the  contract 342 

(vi.)  From  statute— Companies  Act,  1867,  s.  38 342 

Mere  silence  generally  permissible  in  either  party 343 

Silence  of  purchaser 344 

Aggressive  concealment 344 

Purchaser  may  not  make  any  false  representation  or  suggestion 845 

Silence  not  fraudulent  but  unfair 846 

Puffing  at  auctions 346 

(i.)  Where  sale  without  reserve 347 

All  parties  having  liberty  to  bid 347 

(ii.)  One  puffer  employed 347 

A  defense  in  chancery 348 

(iii.)  Several  puffers 348 

The  sale  of  land  by  Auction  Act,  1864,  s.  4 348 

Sections  5,6 849 

Fraud  by  agents 349 

Agency  of  directors 350 

Fraud  by  a  mere  stranger 350 

Fraud  affects  the  entire  contract 350 

So  does  misrepresentation 350 

The  two-fold  effect  of  fraud 351 

Contract  voidable  not  void 351 

Consequences  of  contract  being  voidable  only 3.")2 

How  right  to  rescind  may  be  precluded 352 

(I)  Rescission  impossible 352 

(ii. )  Rescission  inequitable  352 

(iii. )  Election  to  abide  by  the  contract 352 

Contract  to  take  shares 353. 

How  election  may  be  made 353 

Election  final 353, 

(iv.)  Inability  to  make  restitution 353 

Does  the  receipt  of  any  benefit  prevent  rescission  ? 354 


CONTKNr>.  WiX 

rA«B. 

Restitution  reudereil  imi>o&sJble  by  act  of  third  person ...  JtW 

The  French  liiw 

Innocent  misrepresentation  does  not  generally  give  right  to  re«ciud. . , 

Other  remedies  open  though  rescission  impossible 

Fraud  is  a  personal  bur  to  relief 

Innocent  misrepre.senlation •'•''^ 

Fraud  on  the  public     *'* 


CHAPTER  XV, 

OK    MISTAKE. 

Kinds  of  mistake  that  occur  in  contracts y'»<^ 

Principle  of  the  defense ^'i^ 

Mistake  sometimes  but  not  always  a  bar  to  performance 3<51 

As  to  the  Statute  of  Frauds 301 

Parol  evidence  admitted  for  defense !561 

Mistake  of  the  defendant :WW 

Where  contributetl  to  by  plaintiff 804 

Mistake  i)urely  of  defendant J''>-* 

on  the  part  of  ti  vendor «^W 

of  defendant's  agent   3M 

Cases  where  mistake  of  defendant  is  no  defense 366 

Mistake  of  one  party  as  a  ground  for  rescission 309 

Parol  variation  set  up  b}*  defendant 869 

(i.)  Where  enforced 3C9 

<ii.;  Where  action  dismissed  8"^' 

£uforcement  of  variation  unfair 870 

(iii  )  Plaintiff  i>ut  to  bis  election 870 

Instances  of  variation 872 

Variation,  how  set  up 878 

Evidence 873 

Common  ei  ror 874 

Mistake  a  ground  for  rescission 874 

Instances  of  rescission 875 

Mistake  a  ground  for  ix-ctification 876 

Rectilicaliou  recjuires  a  prior  contract 877 

Mistake  of  one  party  not  a  ground  for  compulsory  rectitkatiun 878 

Election  between  annulment  and  rectification 878 

Parol  evidence  admitted  for  rectification 878 

The  proof  must  W  clear 879 

Jiatent  amliiguity 879 

Division  of  mistake ^^ 

Mistakes  of  law ' 

Misrepresentation  of  law "  ' 

The  court  will  now  relieve  against  mistakes  of  law S**! 

Lord  Weslbury  on  I'/norantiajurii  ftoutl  exeutit 85<8 

Result  of  tlie  authorities 384 

SjH'culation  as  lo  facts *** 

Mistake  not  about  essence  of  coatract 885 


PAGE. 

.   885 
.  385 


^-^-X  CONTENTS. 

'I  he  Roman  law 

Where  the  writing  purposely  differs  from  the  contract ^^^^ 

Subsequent  parol  contract 

Specitic  performance  with  rectification  of  mistake J»' 

Mistake  of  plaintiff  alone 

of  both  parties '  " ' 

in  reference  to  Statute  of  Frauds ^^° 

Cases  of  entire  exclusion  of  parol  evidence  for  i)laiutilf ^m 

Lord  St.  Leonards  on  the  doctrine ^ 

These  cases  observed  on 

Previous  parol  contract ' 

Admission  of  parol  evidence  for  plaintiff ^^^ 

Opinions  of  American  jurists °^^ 

Effect  of  the  Judicature  Act,  1873.  s.  24  (7) 394 

Cases  of  rectification  and  relief  in  same  suit 395 

Misdescription  in  contract 


CHAPTER  XVI. 

OK  THE  INC.U'ACITY  OF  THE  COURT  TO  PERFORM  PART  OF  THE 
CONTRACT. 

Subject  of  the  chapter 399 

Contract  divisible  or  not 399 

Sale  of  property  in  one  lot 399 

Ship  and  freight 400 

Distinct  lots "^^^ 

Different  prices  for  different  parts 403 

Cross  coutracls  of  sale    403 

Stipulation  for  piece-meal  execution  408 

Contemporaneous  contracts 404 

The  court  will  not  perform  part 404 

Consideration  a  future  act 405 

Illustrations  of  the  principle.  ■. 405 

Where  execution  of  deed  not  ordered 406 

Where  execution  of  deed  ordered 406 

The  principal  applied  to  marriage  contracts 407 

Exceptions — 

(i.)  Separate  execution  contemplated 407 

(ii.)  Where  the  contract  is  executed 407 

Difference  between  executory  and  executed  contracts  illustrated  from  part- 
nership articles 408 

And  from  leases 409 

(iii).  Relief  on  contracts  not  by  way  of  specific  performance 409 

(iv.)  Where  contract  may  be  completely  performed  though  there  arc 

future  acts 410 

(v.)  Where  part  cannot  be  performed  through  defendant's  default 410 

Lord  Cairns'  Act 411 

(vi.)  Where  the  contract  has  negative  and  positive  stipulations 412 

Negative  stipulation  implied 413 


CONTENTS.  XXXI 

PAOE. 

Negative  implied  in  clmrter- party ■^1'^ 

Limits  of  the  doctrine    .' "^^^ 

Lord  Hatlierley's  view ^^^ 

Jessel,  M.  R.,  iu  Fotliergill  v.  Rowland -^^6 

Doctrine  of  Lumley  v.  Wagner  not  to  be  extended -IKJ 

Conclusions  from  the  authorities '^^'^ 

Unenforceable  terms  all  on  plaintiff's  side 418 

(vii.)  Where  the  arrangement  is  partly  honorary 418 

(viii.)  Where  the  contract  is  alternative 418 

(ix.)  Where  the  part  which  the  court  could   not  enforce  has  been 

performed 418 


CHAPTER   XVir. 

OF   DEFECT  IN   THE   SUBJECT   MATTER   OF   THE   CONTRACT. 

Nature  of  the  defense 4'-- 1 

Defects  patent  or  latent 4v"^ 

Patent  defects  422 

Latent  defects .   422 

Defect  consisting  in  undisclosed  liability 423 

Defect  unknown  to  both  parties 4-4 

Variation  which  is  not  a  defense 4-4 

Uncertainty  in  subject-matter  and  in  description  of  it 424 

Sale  with  all  faults 424 

Effect  of  a  defect 425 


CHAPTER  XVIII. 

OF   THE   WANT   OF   A    GOOD   TITLE. 

Title  must  be  free  from  doubt 427 

Former  practice • 4-8 

Present  rule ^"^ 

Observations  on  the  rule 429 

Arguments  against  and  for  the  rule 4^9 

Amount  of  doubt 430 

Marketable  title • 430 

Formerly  performance  refused  through  court  in  favor  of  the  title 430 

Present  tendency  of  the  court 431 

Decision  of  inferior  court 431 

Lord  St.  Leonards'  court 431 

Nature  of  the  doubt 432 

Cases  in  which  court  would  consider  title  doubtful 432 

(i.)  Probability  of  litigation  great 432 

(ii.)  Past  adverse  decision  doubted 432 

(iii.)  Past  favorable  decision  doubted 432 

(iv.)  Construction  of  inartificial  instrument 432 

(v.)  Title  resting  on  presumption  of  doubtful  fact 432 


XXXii  CONTENTS. 

PAGE. 

Voluntary  settlor  plaintiff ^'^^ 

(vi.)  Presumption  of  fact  fatal  to  title 432 

Cases  where  court  would  not  consider  title  doubtful -135 

(i.)  Probability  of  litigation  small 435 

(ii.)  Past  adverse  decision  wrong 435 

(iii.)  Question  dependant  on  general  law 435 

(iv.)  Where  general  rule  of  construction 4To 

(v.)  "Where  presumption  in  favor  of  the  fact 435 

(vi.)  Suspicion  of  7nala  fides 435 

Dictum  of  Leach,  V.  C,  observed  upon 438 

Title  under  will 439 

Costs 439 

Bringing  in  adverse  claimant 439 

Land  Transfer  Act,  1875,  s.  93 439 

Judicature  Act,  1875,  Ord.  XVI,  r.  17 440 

Special  case 440 


CHAPTER  XIX. 

OF   FAILURE   OF  THE  CONSIDERATION. 

Events  affecting  the  subject-matter 442 

1.  Events  prior  to  the  contract. 

Operation  of  prior  events 443 

Destruction  of  subject-matter  of  contract 444 

The  question  excluded  by  contract 445 

When  is  the  contract  complete 445 

Sale  of  Land  by  Auction  Act,  1867,  s.  7 44(j 

3.  Events  subsequent  to  the  contract. 

Sometimes  a  defense 446 

Where  contract  subject  to  an  implied  condition. 446 

Contracts  for  sale  of  land 446 

A  condition  not  performed 447 

Subsequent  illegality 448 

Events  subsequent  to  the  contract  being  entered  into  and  becoming  abso- 
lute    448 

The  principal  formerly  not  clearly  recognized 449 

Illustrations  of  the  principal  as  now  established 449 

Failure  or  winding  up  of  company 450 

Extinction  of  subject-matter  by  lapse  of  time  after  issue  of  writ  and  before 

trial 450 

Opinion  of  Alderson,  B 451 

The  point  now  unimportant 451 


CONTENTS.  XXXlll 

CHAPTER  XX. 

OF  DEFAULT  ON  THE  PART  OF  THE  PLAINTIFF. 

PAGE. 

Plaintiff  must  show  performauce  and  willingness  to  perform 453 

1.  The  performance  of  pad  acts. 

Of  what  terms  plaintiff  must  show  performance 454 

•Of  what  he  need  not 454 

(i.)  Express  terms 455 

(ii. )  Implied  term 455 

(iii.)  Representations  of  future  acts 455 

Plans 456 

Contract  silent  as  to  plan 456 

Intended  division  bj'  roads  shown  on  plan 456 

Exact  performance  of  scheme  not  obligatory 456 

Plan  accurately  representing  present  state  of  property 457 

(iv.)  Default  must  be  of  an  important  term 457 

(v.)  Default  in  respect  of  collateral  contract . .   458 

(vi.)  Performance  waived  by  defendant 460 

Non-performance  the  fault  of  defendant 460 

Infancy 460 

(vii.)  Impossibility  of  performance 460 

Substantial  part  performed 461 

■Gilbert's  Lex  Prtetoria  quoted 461 

Where  plaintiff  shall  have  relief 462 

The  rule  does  not  apply  to  marriage  contracts 463 

2.  The  performance  of  future  nets. 

Default  in  respect  of  acts  to  be  done 463 

Trustees  in  bankruptcy 463 

Bankruptcy  of  plaintiff 464 

Disclaimer  by  trustee 464 

Insolvency 464 

Subsequent  affluence 465 

Insolvency  after  assignment  of  interest : 465 

Felony 465 

Loss  of  deeds 465 

CHA.PTER  XXI. 

OF   ACTS   IN   CONTKAVENTION   OF  THE  CONTRACT. 

Nature  of  the  defense 467 

Acts  which  would  have  worked  forfeiture 467 

Cases  of  contracts  for  leases 467 

Waste 468 

The  acts  must  be  gross  and  willful 468 

Lease  ordered  to  bear  date  of  contract 4(i8 

Cases  under  contracts  for  leases  classified ...  469 

C 


XXXiv  CONTENTS. 

PAGE. 

1.   W/ure  the  ads  complained  of  have  M  to  refusal  of  specific  per- 
formance. 

469 
Instances 

3.  Cases  where  relief  has  not  been  refused. 

Breach  trivial  or  waived 

Breach  not  working  absolute  forfeiture 470 

Where  landlord  defendant  has  not  complained  before  action 471 

Irish  Tenantry  Acts 4'^ 

3.    Wiere  specific  performance  loas  granted  and  the  question  of  breach  of 
covenants  left  for  decision  at  law. 

Practice  of  the  Court  of  Chancery 472 

Establishment  of  tliat  practice 47S 

Anticipated  practice  under  the  Judicature  Acts 473 

Otlier  illustrations  of  the  principle 473 

Railway  company 473 

Small  breaches  of  good  faith 473 


CHAPTER  XXII. 

OF  THE   NON-PERFORMAXCE   OF   CONDITIONS. 

Contracts  not  to  be  performed  until  absolute 4T5 

Condition  express  or  implied 476 

Railway  contracts 476 

Waiver 477 


CHAPTER  XXIII. 

OF   THE   INCAPACITY   OF   THE  DEFENDANT   TO   PERFORM    HIS  PAKT   OF 
THE   CONTRACT. 

Contract  conditional  on  capacity 478 

Such  contracts  cannot  be  sued  on 478* 

Where  incapacity  of  defendant  a  defense 478 

Defendant  author  of  his  own  incapacity 480 

Capacity  when  to  be  judged  of 480 

Illustrations  of  the  principle 481 

Application  to  Parliament  required 481 

Estate  not  the  vendor's 481 

Goods  not  in  possession  of  vendor 481 

Consent  of  third  parties 481 

Sale  of  wife's  estate 483 

Execution  cy  pres 483 

Death  of  co-contractor,  tenant  in  tail 483 

Lease  by  copyholder 484 

Contract  modeled  so  as  to  be  legal 484 


CONTENTS.  XXXV 

PAGE. 

Modeling  confined  to  formal  matters 4g4 

Contract  partly  invalidated  by  legislation 4g5 

Contract  modeled  .so  as  to  be  possible 4^*5 

Rail wa}'  cases 4,s5 

Impossibility  of  one  alternative 4ii<(5 

(i.)  One  alternative  originally  impossible 4S0 

(ii.)  One  alternative  rendered  impossible  by  the  act  of  God 487 

(iii.)  One  alternative  prevented  by  the  other  party 4h9 

The  j)rinciple  of  these  cases 49O 

(iv.)  One  alternative  prevented  by  a  stranger 400 

(V.)  Elected  alternative  becoming  impossible 490 


CHAPTER  XXIV. 

OF   THE    RKCISSION    OF    THE   CONTRACT. 

Grounds  of  rescission 4<io 

1.  A  simple  agreement  to  rc!>ciud. 

Agreement  to  rescind 4{<.> 

Parol  agreement  to  rescind  writing  or  deed 493 

Objection  from  rule  of  law 494 

Objection  from  Statute  of  Frauds 494 

Agreement  to  rescind  evidenced  by  conduct    404 

Evidence  must  be  clear . .  495 

Absolute  refusal  of  one  party 495 

There  must  be  total  abandonment 495 

Cases  at  common  law 4913 

Conduct  may  prevent  party's  rights,  yet  not  be  a  rescission 490 

2.  A)k  agrctint'iit  upon  mw  terms. 

Second  agreement  inconsistent 49(j 

Alteration  not  amounting  to  novation 49(3 

Concession 497 

Novation  must  be  a  valid  contract 497 

Evidence  of  the  new  contract 497 

1.  Original  contract  by  parol 497 

2.  Original  contract  in  writing 49,vj 

3.  Original  contract  by  law  required  to  be  in  writing 499 

Where  only  extinguishment  of  original  contract  sought 499 

'6.  An  iigreement  with  a  third  person. 

Third  person  substituted 5OO 

Resale  of  shares ^OO 

Novation  in  sales  of  shares 500 

Other  cases  of  novation 500 


XXXvi  CONTENTS. 

PA  SB. 

4.  Exercise  of  n  poicer  to  rescind  reserved  by  tlie  contract. 

Expre64i  power  to  rescind ^^^ 

Contnict  to  be  void  in  specified  event 501 

Right,  how  to  be  exercised  501 

Vendor  without  any  title '•  •  •  503 

Witliin  what  time  riglit  must  be  exercised 503 

Waiver  or  loss  of  riirht  to  rescind 503 

Separate  breaches 504 

Condition  for  rescission  limited  by  another  for  compensation 504 

Action  claiming  rescission 505 

5.  Becission  the  ground  of  fraud  or  mistake.' 

Either  party  may  rescind 505 

6.  Where  one  party  has  refused  to  perform  or  unreasonably  delayed 

performance. 

Refusal  to  perform 505 

Insolvency 506 

Delay 506 

7.  WJiere  one  party  has  made  performance  impossible. 

Election  by  the  other  party 506 

Impossibility  must  be  in  a  substantial  part 507 

Impossibility  produced  by  fraud 507 

CHAPTER  XXV. 

OF   THE    LAPSE   OF   TIME. 

Nature  of  the  defense 510 

Time  formerly  differently  regarded  at  law  and  in  Equity 510 

Provision  of  the  judicature  acts  as  to  time 511 

Division  of  the  subject , 512 

1.  Time  originally  of  the  essence  of  the  contract. 

Wlien  time  is  of  the  essence 512 

By  express  condition 514 

Condition  must  be  clear 5I(; 

Implication  from  nature  of  subject-matter 517 

Subject-matter  daily  varying 51^7 

Commercial  enterprise g^^g 

^Ii°e« • ......'.'.'.'.'.'.  51S 

Coal 518 

Patents gig 

Shares e^q 

Surrounding  circumstances r^jo 

Condition  showing  time  not  of  the  essence 520 

Option  of  retirement  from  company goQ 

Where  delay  would  involve  hardship    ^21 


CONTENTS.  XXXVll 

PAOK. 

Time  in  some  respects  of  the  essence 521 

"Where  the  contract  is  imilateral 522- 

2.  Time  engrafted  hy  notice. 

When  notice  may  be  engrafted 522 

Introduction  of  the  principle 522 

The  time  limited  by  notice  must  be  reasonable 522 

Previous  refusal  to  remove  objection 523 

Conditional  waver  of  notice 523 

Nature  of  the  subject-mtitter 523 

What  notice  requisite 524 

Where  parol  notice  sufficient 524 

3.  Lapse  of  time  constituting  laches  or  evidencing  abandonment  of  contract. 

Delay  as  laches 524 

Laches  a  bar  to  relief 527 

Contract  not  mutual  527 

Option  to  have  lease 528 

Acquiescence 528 

What  delay  sufficient 528 

Delay  after  notice  by  the  other  party 529 

4.  Where  time  does  not  run. 

Contract  substantially  executed 530 

Possession  must  be  under  the  contract 531 

Pending  negotiation 531 

Delay  arising  from  party  objecting 532 

Leaving  deposit 533 

Continuing  in  possession 533 

Land  taken  under  railway  act 533 

Mere  claim 533 

5.  Waiver  of  delay. 

Waiver  bj'  conduct 533 

Intention  and  knowledge  requisite 534 

As  to  time  for  payment 534 

As  to  time  for  delivery  of  objections 534 

Possession 535 

Extension  of  time 535 

Waiver  of  time  for  doing  an  act,  no  waiver  of  the  act 535 

Waiver  decided  at  the  trial 536 


XXXviii  CONTENTS. 


PART  ly. 

OF   THE   MODE   OF   EXERCISING   THE   JURISDICTION". 


CHAPTER  I. 

OF   THE   INSTITUTION  OF  TELE  PROCEEDINGS. 

PAGE. 

The  former  practice ^°^ 

Judicature  Act,  1873,  s.  34 538 

Limited  operation  of  the  thirty-fourth  section 538 

Form  of  writ 538 

Transfer  of  action 538 

Action  properly  commenced  in  Queen's  Bench  Division 539 

Special  case 539 

Vendor  and  Purchaser  Act,  1874,  s.  9 539 

The  County  Courts  Acts,  1865  and  1867 540 

Procedure  under  County  Courts  Acts 540 

High  Court  retains  current  jurisdiction 541 

Land  Transfer  Act,  1875,  s.  93 541 

Companies  Act,  1862,  s.  35 542 

Application  of  this  section  to  cases  of  specific  performance 542 

CHAPTER  II. 

OF  INJUNCTIONS. 

Subject  of  the  chapter 544 

How  injunction  is  connected  with  specific  performance 544 

1.  Injunction  the  instrument  of  perfor7nance. 

Effect  of  restraining  breach  of  a  term  of  a  contract 544 

Contract  containing  express  negative  terms 545 

Part  of  contract  incapable  of  performance 545 

Refusal  of  court  to  interfere 545 

Breach  of  express  or  implied  term  restrained 546 

2.  Injunction  ancillary  to  p&)'formance. 

Object  and  effect  of  injunction  in  these  cases 546 

Granted  on  prima  facie  case 547 

Instances  of  grant  of  injunctions 547 

Vendor  obstructing  valuer 548 

Lis  pendens 548 

Balance  of  convenience 548 

Second  purchase 549 

Injunction  against  third  persons 549 


CONTENTS.  XXXIX 

FAOE. 

Acts  inconsistent  with  the  contract 549 

Former  chancery  practice  of  restraining  action  in  other  courts 5-49 

The  present  practice  (Judicature  Acts,  1873  and  1875) 550 

Effect  of  Jud.  Act,  1873,  s.  24,  sub-section  5 550 

3.  Enforcement  of  right  resulting  from  non-performance. 

When  the  court  will  interfere 550 

Extent  of  the  High  Court's  jurisdiction  in  injunction 551 


CHAPTER  III. 

OF  THE  WRIT   OP  NK  EXEAT. 

The  writ  issued  by  tlie  Court  of  Chancery 553 

Use  of  the  writ  under  the  present  practice 553 

Debtors  Act,  1869,  s.  6  553 


CHAPTER  IV. 

OF  RELIEF  AFTER  JUDGMENT. 

Such  relief  often  necessary 555 

Modes  of  relief  open  to  either  party 556 

(i.)  Sequestration  or  attachment 556 

(ii.)  ^lotion  to  rescind  556 

Damages 557 

Vendor's  lien 5o7 

When  the  lien  will  and  will  not  prevail 557 

Modes  of  enforcing  the  lien 558 

(i.)  Sale 558 

Railway  company 558 

(ii.)  Receiver 559 

(iii.)  Injunction  restoring  possession 559 

"Writ  of  assistance 559 

Vesting  order 559 


PART  Y. 

OF   INCIDENTAL   MATTERS. 


CHAPTER  I. 
OF   CONDITIONS   OF  SALE  AND   PARTICULARS. 


Conditions  part  of  contract 
How  regarded 


560 
560 


Xl  CONTENTS. 

PA«B. 

Reasonable  clearness  requisite 5"" 

Instances  of  ambiguity 563 

Conditions  construed  strictly 568 

Vendor  unable  to  give  a  good  title 564 

Outgoings 564 

Rents  and  profits 564 

Sense  of  condition  not  extended  by  implication 565 

Time  for  delivery  of  objections 565 

Fraud 565 

Inconvenient  requisition 566 

Misleading  condition 566 

Facts  stated  in  conditions 567 

Conditions  in  sales  by  the  court 567 

Stipulation  as  to  form  of  conveyance 568 


CHAPTER  II. 

OF   COMPENSATION. 

Vendor  nnable  to  perform  the  whole  of  the  contract 570 

Origin  of  the  right  to  compensation  570 

Pleading 570 

Division  of  the  subject 571 

1.  (a.)   Vendor  insisting  on  the  contract  there  being  no  condition  for 
compensation. 

Vendor  must  be  able  to  perform  his  part  substantially 571 

Tlie  principle  stated  by  Lord  Thurlow 572 

Limitation  of  the  principle 572 

Essential  and  non-essential  defects  to  be  distinguished 572 

(i.)  Material  part  wanting 572 

Nuisance  apprehended 573 

Tenure  different .574 

Freehold  estate  with  a  leasehold  adjoining 574 

Estate  sold  as  tithe-free 574 

Incumbrances 574 

Indemnity 575 

Purchaser  not  compelled  to  take  indemnity 575 

Misrepresentation 576 

Conduct  inconsistent  with  contract 576 

(ii.)  Defect  not  essential 576 

Profits  over-stated 576 

Trifling  incumbrances 596 

Taxes  under  local  act 577 

Tithe  577 

Patent  defect 577 

Such  defect  must  be  visible 578 

"Waiver  of  defect 579 

Defect  immaterial 578 


CONTENTS.  xli 


1.  (b.)  Vendor  insisting  upon  the  contract,  there  being  a  condition  for 

compensation. 

The  vendor's  position  in  such  cases -^ '  9 

Material  misdescription 5 1 9  • 

Prohibited  trades  imperfect!)^  enumerated 579 

Copj'hold  described  as  freehold ^^9 

Tenancy  yearly  only  580 

Rights  materially  affecting  enjoyment 580 

Compensation  reasonably  estimable 581 

Reasonable  estimate  unattainable 581 

Copyhold  nearly  equivalent  to  freehold 581 

Underlease  called  lease 58^ 

Other  cases  where  compensation  is  not  given 582 

Misrepresentation 58- 

Flourishing  description 58o 

2.  (a.)  Purchaser  insisting  on  the  contract,  there  being  no  condition  for 

compensation. 

Purchaser  may  take  all  that  vendor  has 583 

The  principle  stated  by  Lord  Eldon 584 

Illusli  ations  of  the  principle 584 

Modern  application  of  the  principle 585 

Wife's  interest 586 

Title  to  a  moiety  only 5b6 

Moiety  subject  to  a  mortgage 586 

Purchaser  aware  of  the  defect 586 

Limitations  of  the  principle 588 

Prejudice  to  third  persons 588 

Purchaser  aware  of  vendor's  incapacity 588 

Benefice  subject  to  mortgage  to  Queen  Anne's  bounty 589 

Abatement,  how  calculated 589 

Computation  impossible  ^^" 

Compensation  approximately  ascertainable 5;t0 

Enforcement  of  contract  inequitable 591 

Indemnity 591 

When  compensation  must  be  claimed 592 

Claim  before  completion 592 

Deterioration 592 

Claim  after  completion 593 

2.  b.  Purchaser  insisting  on  the  contract,  there  being  a  condition  for  com- 
pensation. 

Effect  of  the  language  of  the  condition 593 

Condition  enforced  notwithstanding  execution  of  conveyance 594 

Cases  contra 594 

Suggested  mode  of  precluding  controversy 594 

Construction  of  conditions  for  compensation 595 

Considerable  deficiency  of  area 595 

No  allowance  for  deficiency 595'- 


Xlii  CONTENTS. 


FAOE. 

.  596 


Vendor  entitled  to  rescind 

Right  to  compensation  abrogated  by  terms  of  contract 596 

Damacres ^  ■ 


CHAPTER  III. 

OF  DAMAGES. 

Distinction  between  compensation  and  damages 599 

Lord  Cairns'  Act 5^9 

Condition  precedent  to  jurisdiction  under  that  Act 600 

Order  for  damages  subsequently  to  decree 601 

Effect  of  Judicature  Acts  as  to  damages 601 

Present  powers  of  the  court 603 

Present  exercise  of  jurisdiction  under  Lord  Cairns'  Act 602 

Utility  of  the  jurisdiction  in  damages 602 

Loss  of  profits 602 

Suit  brought  to  hearing  for  damages 602 

Partial  performance  plus  damages 603 

Damages  in  substitution  for  performance 603 

Where  vendor  has  no  title  603 

Mistake  of  defendant 603 

Ascertainment  of  quantum  of  damages 604 


CHAPTER    IV. 

OF   REFERENCE   OF   TITLE. 

Purchaser  defendant 609 

Reference  in  general  terms 009 

Purchaser's  costs  disallowed 610 

Vendor  cannot  except  to  the  title ....  610 

Purchaser  plaintiff 610 

In  respect  of  what  contracts  the  right  exists 610 

Where  reference  not  directed 610 

Vendor  selling  such  interest  as  he  has 611 

Contract  for  assignment  of  Vendor's  share 612 

Misleading  condition 612 

Inquiry  limited 613 

The  cases  fall  into  two  categories 613 

First  category  illustrated 613 

Second  category 614 

Defect  discovered  by  purchaser  without  inquiring  of  vendor 614 

Defect  disclosed  by  vendor  himself    614 

Title  in  accordance  with  conditions 614 

Waiver  of  the  right 615 

by  vendor 615 

by  purchaser 615 

Express  waiver 615 


CONTENTS.  xliii 

Implied  waiver 616 

Particular  objections 618 

•Classification  of  the  cases 616 

i.  Where  the  objection  is  known  and  curable 616 

ii.  Where  known  and  incurable 616 

Contract  treated  as  subsisting 617 

Where  there  is  an  agreement  for  possession 617 

Possession  taken  with  vendor's  consent 618 

iii.  Acts  of  ownership 618 

Such  acts  must  be  strong  and  distinct 618 

.Acts  amounting  to  waiver 618 

Waiver  by  silence  of  subsequent  contract 619 

Acts  not  a  waiver 619 

Waiver  of  lessor's  title 62< » 

•Contract  not  enforced  notwithstanding  waiver 620 

.Defect  cured  by  purchaser's  own  act 621 

Pleading  waiver 6'~1 

Reference — at  what  stage  directed 62 1 

Practice  of  the  court  of  chancery 621 

i.  At  the  hearing 6',~ 

ii    On  motion  after  answer 622 

Question  of  title  only 622 

Other  questions  frivolous 6','- 

Inquiry  before  the  hearing  an  indulgence 622 

Reference  before  the  hearing  refused 622 

What  are  questions  of  title  623 

Questions  suitable  for  the  hearing 623 

Motion  by  purchaser  defendant  623 

(iii.)  Reference  before  answer 623 

Where  vendor  ought  to  apply  for  the  reference 624 

The  present  practice 6'-4 

Inquiry  rls  to  matters  connected  with  title 624 

when  good  title  shown 6'>4 


other  matters. 


62.") 


Inquiry  limited ^'-^ 

When  the  title  may  be  made  out 623 

Time  allowed  for  completion  of  title 626 

Where  vendor  plaintiff 6'..b 

Time  not  allowed    "-b 

Old  title  cured,  or  new  title 626 

Acquiescence  of  purchaser 6~^ 

Inquiry,  how  made "-  < 

Evidence "'^ 

Vendor  and  Purchaser  Act,  1874,  s.  9 627 

Form  of  certificate 6".8 

Certificate,  how  objected  to 628 

Certificate  in  favor  of  the  title 628 

Certificate  referred  back 628 

Reference-back  under  the  old  practice 629 

>Certificate  against  the  title 629 


xliv                                                 CONTENTS. 
Costs 


PAGE. 

.   630 
.  630 


What  is  a  good  title 

Distinctions  between  questions  of  title  and  of  conveyance bdO 

Rule  laid  down  in  Esdaile  v.  Stephenson ^"^^ 

lilustrationsof  the  rule 

Distinction  between  showing  and  making  title "^V 

Distinction  between  mailers  of  evidence  and  of  litlc 632 


CHAPTER  V. 

OF  IMERETS,    KENTS,   DETORIATION  AND  PAYMENT  INTO  COURT. 

The  passing  of  the  property  in  subject-matter  of  contract 633 

Difference  between  the  legal  and  equitable  estates • 633 

Mutual  obligations  of  the  contractors 634 

Vendor's  obligations "^'^ 

Vendor  a  constructive  trustee ''^^ 

Purchaser's  obligations 634 

Purchaser  a  constructive  trustee 634 


Liens 


635 


Transfer  of  possession 63o 

Estate  and  price,  rents  and  interest,  mutually  exclusive 635 

Application  of  the  general  principles 636 

Division  of  the  subject 636 

1.    WMre  the  vendor  is  in  possession. 

No  time  fixed  for  completion .  . 636 

Time  fixed  for  completion 637 

Interest  more  than  rents,  delay  vendor's 637 

Title  made  out  in  chambers 637 

Action  occasioned  by  purchaser  .    •■  •  •  •  639 

Purchase-money  to  be  ascertained  after  contract 639 

Purchase-money  appropriated  and  notice  given  to  vendor 639 

Rents  expressly  reserved  to  vendor 640 

Delay  from  any  cause  whatever 640 

Lord  Cottenham's  decision  in  De  Visme  v.  De  Visme.    640 

Analogies  with  Lord  Cottenham's  decisions 642 

Such  stipulations  construed  literally 642 

What  delay  will  not  exempt  purchaser 642 

Delay  from  untenable  objection  or  act  of  God 643 

Exemption  by  appropriation  of  purchase  money 613 

("oudilion  as  to  interest  dependent  on  condition  as  to  abstract 643 

Interest,  on  what  amount  payable 644 

Interest  on  deposit 644 

Rate 644 

Profit  made  by  purchaser 644 

Income  tax 644 

What  rents  the  vendor  is  charged  with 644 

Willful  default 644 


CONTEXTS.  Xlv 

PAGE 

Vendor  not  bailiff  to  purchaser 64.'» 

Out-goings 045 

Deterioration C45 

Where  borne  by  vendor 04") 

Set-off  against  interest •  •  C40 

Deterioration  by  vendor's  tenants 640 

Duty  of  vendor  to  re-let  farm 646 

Vendor  working  mine 646 

Deterioration  borne  by  purchaser •  • .  ■  647 

Possession  of  vendor  accidental 647 

Purchaser  the  cause  of  the  mischief 647 

Vendor  in  personal  occupation ^ 047 

Purchaser  in  default 64*3 

Income  tax  a  just  allowance 648 

2.    Wfiere  the  purchase}'  is  in  possession. 

Purchaser  in  possession  must  pay  interest 648 

Though  delay  of  completion  owmg  to  vendor 649 

Election  between  interest  and  rents 64'J 

Stipulation  for  increasing  interest 6o0 

Possession  returned 650 

Purchase-money  appropriated  and  notice  given 650 

Profit  made  on  appropriated  purchase-money 651 

Contract  exempting  purchase  from  interest 651 

Exemption  not  enforced 651 

Purchaser  dispossessed  6"'2 

Possession  under  statutory  power 652 

Price  ascertained  by  verdict  of  jury 652 

Occupation  rent 653 

Sales  of  reversionary  estates 652 

From  what  time  interest  runs 653 

Sale  of  reversion  by  the  court 653 

Payment  of  purchase-money  into  court 653 

Title  made  out 653 

Title  not  made  out 654 

Purchaser  put  to  election 654 

Possession  according  to  contract  655 

Possession  under  some  other  title 055 

Acts  of  ownership 050 

Income-lax,  where  purchase-money  paid  into  court 657 

Procedure 6.)7 

Purchase-money  in  hands  of  stakeholder 658 

When  interest  became  due  within  statute  of  limitations 058 


CHAPTER  VI. 

OF    THE    DKrOSIT. 

Deposit — when  paid 659 

Other  part-payments 659 


xlvi  CONTENTS. 

FAOE. 

^      ,         ,    ,.                                                                  659 

Purcbaser  s  lieu „ „„ 

,                f,                                                                   660 

In  cases  of  lease . 

of  sub-purchase • 

Extent  of  the  lien 

o(jO 

'"///"/.''... 660 

'[[[[,. 660 

'"'[ 6G0 

*''"'' 661 

"'/'.. 661 

[[[][[ 661 

[,[..[.. 663 

'/ 663 

,".''' 663 

*."'.. 663 

[[][, 662 

663 


Under  lands  clauses  act 

Mode  of  enforcing  the  lien 

(i.)  Vendor  plaintiff 

(ii.)  Purcbaser  plaintiff 

Deposit  in  bands  of  auctioneer 

Forfeiture  of  deposit 

Vendor  unable  to  make  title 

The  practice  of  the  court  of  chancery. 

Where  vendor  was  plaintiff 

The  practice  discretionary 

Where  purchaser  was  plaintiff 

Where  lien  claimed 

Where  contract  rescinded 


PART  YI. 

OF   SOME    CONTKACTS    IN"    PAETICULAPw 


CHAPTER  I. 


OF  COXTRACTS  FOR  THE  SALE  OF  SHARES. 

Subject  of  the  chapter 664 

Nature  of  the  relief 664 

Relief  at  common  law 664 

Contracts  off  the  stock  exchange    665 

Contracts  on  the  stock  exchange 665 

The  practice  of  the  stock  exchange  stated 665 

Positions  of  jobber  and  purchaser  the  same 667 

Contract  with  first  purchaser 668 

Peculiarity  of  the  contract 668 

When  the  original  purchaser  is  discharged 669 

Nominee  need  not  be  a  sub-vendee 669 

The  new  contract 670 

When  it  arises 670 

No  contract  with  intermediate  purchasers 671 

Contract  with  registration  guaranteed 671 

Third  person  adopting  the  contract ' 672 

Plaintiff  only  equitably  entitled   673 

Making  a  call  before  the  contract 673 

Power  of  directors  to  refuse  transfer 673 


CONTENTS.  xlvii 

PA8E. 

(i.)  Where  the  vendor  bound  to  effectuate  transfer <i7a 

(ii.)  Where  contract  made  on  stock  exchange 674 

(iii.)  Where  contract  fulls  under  neither  (i.)  nor  (ii.) <i74 

Opposing  views  of  Lord  Romillj-,  M.  R.,  and  Lord  Chelmsford 074 

The  duty  of  procuring  registration 075 

Transfer  not  presented  owing  to  default  of  defendant 675 

The  winding  up  of  the  company 675 

(i  )  Petition  presented  before  contract 675 

(ii.)  Petition  presented  after  contract 675 

The  defence  in  the  latter  case  untenable- 676 


CHAPTER  n. 

OF     CONTRACTS      RELATING     TO     CONTINGENT      INTERESTS     AND      EX- 
PECTANCIES. 

Such  contracts  void  at  common  law 6  •  7 

Secus  in  equity 677 

Instances 677 

Contract  by  sons  to  divide  what  they  might  receive  from  their  father 678 

Covenant  to  charge  annuity  on  expectancy 679 

Circumstances  under  which  such  contracts  are  not  enforceable 679 

Whether  such  contracts  are  purely  personal 6»0 


CHAPTER  IIL 

OF  CONTRACTS  FOR  PARTNERSHIP. 

Such  contracts  generally  not  enforced 681 

Partnership  at  will 681 

Where  term  defined  and  part-performance 681 

Contract  to  execute  partnership  deed 681 

Where  contract  illegal G'"'"' 

Performance  unenforceable 682 

Relief  on  partnership  articles 682 


CHAPTER  IV. 

OF   CONTR.ACTS   FOR   THE   SALE   t)l'   .silIlS. 

Present  state  of  legislation  on  the  subject 6S3 

Merchant  Shipping  Act,  1854 683 

Merchant  Shipping  Act  Amendment  Act,  1862 6f3 

Persons  qualified  to  be  owners  of  British  ships 684 

Result  of  the  legislation 684 

History  of  the  legislation 685 

The  Act  26  Geo.  Ill,  c.  60 685 

The  Act  4  Geo.  IV,  c.  41,  s.  29 685 

Enactment  as  to  mode  of  transfer 685 


y:\Y\u  CONTENTS. 


Re-enacted  b}'  subsequent  statutes 

Contracts  avoided  by  non-compliance 

The  Merchant  Shipping  Act.  l«54 

The  Amendment  Act  of  1862 • 

Contracts  as  to  monej'  accruing  from  sale  of  ship 

Foreign  ships 

CHAPTER  V. 

OF   CONTRACTS   FOR  SEPARATION   DEEDS. 

•  Contracts  for  future  separation  not  enforced 

Extent  of  the  jurisdiction 

•  There  must  be  a  binding  contract . 


PAGE. 

.  685 

.  68(5 

.  680 

.  686 

.  686 

.  687 


688 
688 


Competency  of  wife  to  contract  with  husband 688 

Good  consideration 

Care  of  children ^^^ 

Contract  held  incapable  of  performance 690 

Act  to  amend  the  law  as  to  custody  of  infants 690 

Effect  of  this  Act ^^l 

.  Specific  relief ^^^ 


CHAPTER  VI. 

OF   CONTRACTS  TO   COMPROMISE. 

Private  compromises "9^ 

Jurisdiction  of  the  court  of  chancery 692 

Where  immediate  interference  necessary  692 

"Where  all  parties  before  the  court  and  the  matter  simple 692 

In  other  cases  a  fresh  suit  requisite 693 

Since  the  Judicature  Acts 694 


CHAPTER  VII. 

OF  AWARDS. 

Extent  of  the  jurisdiction 695 

Lord  Ilardwicke's  doctrine 695 

"Where  submission  made  rule  of  common  law  court 696 

Where  award  not  binding  at  law 696 

Abandonment  of  a  term  of  the  submission 696 

Award  unreasonable 696 

Award  in  excess  of  authority 697 

Grounds  of  defense 697 

Submission  unreasonable 697 

Award  excessive  or  defective 698 

Defect  owing  to  defendant 698 

Award  uncertain 698 

.Misconduct  of  valuer 698 


CONTENTS.  xliX 


CHAPTER  VIII. 

OF  CONTRACTS  TO  REFER  TO  ARBITRATION. 

PACK. 

Court  will  not  enforce  them  affirmatively 699 

Contract  to  buy  at  price  to  be  fixed 699 

Inequitable  refusal  of  plaintiff  to  refer 700 

Common  Law  Procedure  Act,  1854,  s.  11 700 

CHAPTER  IX. 

OF   CONTRACTS   NOT  TO   APPLY   TO   PARLIAMENT. 

Mode  of  enforcement 702 

Court  has  jurisdiction  in  a  proper  case 702 

Where  court  will  not  interfere 702 

"Where  applicant  acting  on  private  grounds  only 703 

CHAPTER  X. 

OF   CONTRACTS   TO   INDEMNIFY. 

The  jurisdiction 704 

Where  exercised  by  the  court  of  chancery 704 

Instances 704 


ADDITIONAL  NOTE. 

On  the  law  of  France  in  relation  to  specific  performance 707 


D 


NOTE. 


The  following  editions  are  referred  to  : 

Austin's  Lectures  on  Jurisprudence,  3d  edition. 

Daniell's  Chancery  Practice,  5th  edition. 

Dart's  Vendors  and  Purchasers,  5th  edition. 

Fonblanque's  Treatise  of  Equity,  5th  edition. 

Haddock's  Chancery  Practice,  2d  edition. 

Seton's  Decrees  (cited  as  "  Seton  "),  4th  edition. 

Stephen's  Pleading,  4th  edition. 

Story's  Conflict  of  Laws,  2d  edition. 

Sugden's  Vendors  and  Purchasers  (cited  as  "St.  Leon.  Vend."),  13th 
edition. 
Mitford's  Treatise  of  Pleadings  is  cited  thus  :  "Redesdale,  Plead." 
The  volumes  of  the  Law  Journal  Reports  cited  are  those  of  the  New  Series. 
The  Rules  of  the  Supreme  Court  are  cited  thus:  Ord.  I,  r.  1. 


THE  SPECIFIC  PERFORMANCE  OF 
CONTRACTS. 


PART  I. 

OF  THE  JURISDICTION. 


CHAPTER  I. 

OF   THE   OKIGIN   AND   GENERAL   CHAEACTEE   OF   THE 
JURISDICTION. 

§  1.  "A  CONTRACT,''  says  the  author  of  The  Mirror^  "is 
a  sj)eech  bet\\T.xt  parties  that  a  thing  which  is  not  done  be 
done. "  (a)  '  'A  contract, ' '  says  Sir  William  Blackstone  with 
greater  exactitude,  is  "an  agreement  upon  sufficient  consid- 
eration to  do  or  not  to  do  a  particular  thing,  "(i)  "  In  order 
to  constitute  an  agreement  or  contract,'-  said  Kindersley, 
Y.  C,  "  two  things  are  requisite— ^r^^Z?/,  the  will;  and  sec- 
ondly^ some  act,  whether  in  word  or  deed,  whereby  that  will 
is  communicated  to  the  other  party.'  No  man  has  entered 
into  an  agreement  or  contract  to  do,  or  not  to  do,  some  par- 
ticular thing  unless  he  has  willed  that  the  thing  should  be 
done  or  forborne,-  and  also  has  communicated  that  will  to 
the  other  party  by  some  act  engaging  to  carry  it  into  effect ; 
when  both  ijarties  will  the  same  thing,  and  each  commu- 
nicates his  mil  to  the  other,  with  a  mutual  engagement 
to  carry  it  into  effect,  then  (and  not  till  then)  an  agreement 
or  contract  between  the  two  is  constituted,  "(c) 

(a)  Ch.  2,  §  27.  Contracts,  ch.  1;  and  per  Stephen,  J.,  iu  Al- 

(6)  2  Bla.  Com.,  442.    For  other  definitions    derson  v.  Maddison,  5  Ex.  D.,  -ITt. 
seeHolland's  Jurisprudence,  173;  Pollock  ou        (c)  Haynus  v.  Ilaj-nes,  1  Dr.  &  bni.,  4:*;. 

'  Definition,  us  applied  to  contract.']  "The  actual  accomplisliineut  of  a  con- 
tract by  the  party  bound  to  fulfill  it."  Bouv.  L.  Die.  "rerformauce  of  con- 
tract iu  the  precise  terms  agreed  upon ;  strict  performance."  Bouv.  L.  Die, 
under  "Specific  performance." 


2  FRY  ON  SPECIFIC  PERFOEMANCE  OF  CONTRACTS. 

§  2.  This  treatise  being  devoted  to  a  discussion  not  of  con- 
tracts in  general  bnt  of  one  particular  method  of  giving  relief 
in  respect  of  them,  it  is  not  proposed  here  to  enter  into  the 
numerous  points  which  arise  upon  the  above  definitions. 
Many  of  the  points  which  would  require  attention  in  such  a 
discussion  will  be  found  treated  of  under  the  head  of  the 
defenses  which  may  be  raised  to  an  action  for  specific  per- 
formance. That  mode  of  treatment,  if  less  logical,  is,  it  is 
conceived,  more  practically  useful  for  the  purposes  of  this 
treatise  than  entering  upon  a  general  discussion  of  the 
nature  of  contracts. 

§  3.  The  specific  performance  of  a  contract  is  its  actual 
execution  according  to  its  stipulations  and  terms ;  and  is 
contrasted  with  damages  or  compensation  for  the  non-execu- 
tion of  the  contract.  Such  actual  execution  is  enforced 
under  the  equitable  jurisdiction  vested  in  the  courts  of  this 
country  by  directing  the  party  in  default  to  do  the  very 
thing  which  he  contracted  to  do,  and,  in  the  event  of  his 
disobedience,  by  treating  such  disobedience  as  a  contemj)t 
of  court  and  visiting  it  with  all  the  consequences  of  such 
contempt,  including  committal  to  prison ;  {d)  and  in  some 
cases  by  doing  in  one  way  the  thing  which  the  defaulter 
was  directed  to  do  in  another  way,  as,  e.  g.,  by  vesting  by 
an  order  of  the  court  an  estate  which  ought  to  have  been 
vested  by  conveyance  of  the  party,  (e) 

§  4.  From  every  contract  there  immediately  and  directly 
results  an  obligation  on  each  of  the  contracting  parties 
towards  the  other  of  them  to  perform  such  of  the  terms  of 
the  contract  as  he  has  undertaken  to  perform.  And  if  the 
person  on  whom  this  obligation  rests  fail  to  discharge  it, 
there  results  in  morality  to  the  other  party  a  right  at  his 
election  either  to  insist  on  the  actual  performance  of  the 
contract  or  to  obtain  satisfaction  for  the  non-performance 
ofit.(/) 

§  5.  When  we  consider  how  large  a  part  in  the  affairs  of 
modern  society  is  played  by  contracts  and  the  resulting 
rights  and  obligations,  and  how  plainly  the  right  to  insist 
on  the  actual  execution  of  contracts  flows  from  their  very 
nature,  it  is  at  first  sight  a  remarkable  circumstance  that  no 

(d)  Seton,  1328, 1563,  et  seq.  (/)  Austin's  Jurisprudence  (3d  ed.) ,  65, 

(e)  See  infra,  §  1151. 


GENERAL  CHARACTER  OF  THE  JURI^iDICTION.  3 

system  of  Jurispnulence,  except  tliat  administered  by  the 
courts  of  equity  in  England  and  its  past  or  present  colonies, 
has  ever  attempted  directly  to  enforce  the  actual  perform- 
ance of  contracts  in  their  very  terms.  And  yet  such  is,  it 
is  believed,  the  cn.se. (g) 

§  6.  It  is  certain  that  the  Roman  law  gave  a  title  to  dam- 
ages as  the  sole  right  resulting  from  default  in  perfonnance, 
and  did  not  enforce  specific  performance  directly  or  in  any 
other  manner  than  by  giving  such  right  to  damages.  It  held 
to  the  maxim,  ''^  Nemo  potest  prcEcise  cogi  ad  factum  ^  {7l) 

§  7.  In  like  manner  the  common  law  of  England  made  no 
attempt  actually  to  enforce  the  performance  of  contracts, 
but  gave  to  the  injured  party  only  the  right  to  satisfaction 
for  non-performance. 

§  8.  Perhaps  it  is  to  the  recent  growth  in  most  societies 
of  contract  as  compared  with  status,  custom,  and  imperative 
law  that  the  want  in  question  is  to  be  referred.  Sir  Henry  S. 
Maine  has  shown,  in  his  work  on  Ancient  Law,(/)  how  slow 
was  the  introduction  into  jurisprudence  of  any  provision  for 
the  enforcement  of  contracts,  and  how  that  introduction  was 
due  to  the  increase  of  commercial  activity.  The  same  spirit 
of  commerce  which  led  to  the  enforcement  of  contracts,  also 
brought  in  the  notion  that  money  is  an  equivalent  of  eveiy- 
thing — is  an  universal  common  measure  ;  and  this,  coupled 
with  the  simplicity  of  early  contracts  and  tlie  difficulty  at- 
tendant on  the  specific  performance  of  complicated  ones, 
probably  led  to  the  arrested  growth  of  the  remedies  for  their 
breach  and  the  confining  of  such  remedies  for  the  most  part 
to  the  payment  of  money  or  the  delivery  of  a  chattel. 
*  §  9.  There  were,  it  appears,  ancient  systems  of  law  which 
refused  all  assistance  to  the  enforcement  of  contracts  on  the 
ground  that  they  ought  only  to  be  entered  into  with  those 
whose  honor  could  be  trusted;  such  was,  it  is  said,  the  prin- 
ciple adopted  by  Charondas  and  the  ancient  Indians.  (,/) 

§  10.  Though  the  courts  of  common  law  never  enforced 
the  specific  performance  of  contracts,  there  were  certain 

(a)  See  further  Infra.  6C9.  for  the  latter  The  Assyrian  Private  Contract 

(h)  See  Pothicr,  Tr.  des  Oblig.,  pt.  I,  ch.  2,  Tablets,  translatcil  by  the  Rev.  A.  H.  Sayce, 

^^x  7  I  "•  '°  1  Uecorils  of  the  Past,  137  »'t  seq.)    In  the 

(t)  Ch.  9.    In  ancient  Egypt  and  Assyria  view  of  comparative  history,  Egypt  and  Aa- 

contracts  seem  to  have  played  a  very  import-  syria  both  reached  the  stJige  of  modern  hls- 

ant  part.    (See  for  the  former  1  Wilkinson's  tory  at  a  very  early  period  of  the  world's  life. 

Ancient  Egyptians,  31i  et  seq.  [ed.  1876];  and       (;)  HoUand,  Jurlsp.,  174. 


4  FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

cases  in  which  they  made  near  approaches  to  it,  and  these 
it  will  be  well  brielly  to  consider.     They  were  cases  : 

(1)  Where  a  piiblic  duty  arose  from  a  private  contract. 

(2)  Where  the  contract  was  for  the  delivery  of  a  chattel. 

(3)  Where  the  contract  was  for  the  payment  of  a  sum  of 

money. 

(4)  Arising  on  covenants  real. 

ij  1 1.  (1)  The  object  of  the  prerogative  writ  of  mandamus 
is  "the  enforcing  of  public  duties.  Before  the  judicature 
acts,(^)  if  A.  had  by  the  deed  of  settlement  of  a  company, 
entered  into  a  contract  with  that  company,  or  with  trustees 
for  it,  or  with  his  fellow  shareholders,  that  a  company 
should  be  formed  and  conducted  in  a  specified  manner,  in- 
cluding, for  instance,  provisions  for  the  registration  of 
transfers  of  shares,  and  if  this  deed  of  settlement  had  been 
confirmed  by  royal  charter  and  the  company  had  made  de- 
fault in  registering  a  transfer,  whereby  A.  was  injured,  in 
such  a  case  the  prerogative  writ  of  mandamus  would  have 
lain  in  the  Court  of  Queen's  Bench,  and  the  public  duty  of 
the  company  which  resulted  from  the  contract  contained  in 
the  deed  of  settlement  would  have  been  enforced  at  the  suit 
of  A.(Z)  Here  the  contract  would  not  have  been  specifically 
enforced ;  but  a  public  duty  flowing  in  part  from  the  con- 
tract would  have  been  performed. 

§  12.  In  addition  to  the  old  prerogative  writ  of  mandamus, 
there  is  a  statutory  writ  under  the  68th  section  of  the  com- 
mon law  procedure  act,  1854,  which  ijrovides  for  the  issue 
of  "  a  writ  of  mandamus  comx^elling  the  defendant  to  fulfill 
any  duty  in  the  fulfillment  of  which  the  plaintiff  is  person- 
ally interested. ' '  It  was  naturally  suggested  that  this  power 
authorized  the  courts  of  common  law  to  grant  specific  per- 
formance of  contracts  by  means  of  the  statutory  writ;  but  in 
the  case  of  Benson  v.  Paull,(7?2)  the  Court  of  Queen's  Bench 
declined  specifically  to  enforce  a  contract  for  a  lease,  and 
determined  that  the  i^rovision  of  the  act  did  not  apply  to 
the  duty  arising  from  a  personal  contract.  To  this  opinion 
the  same  court  adhered  in  the  subsequent  case  of  Norris  v. 
The  Irish  Land  Co.,(?z)  and  it  was  regarded  as  settled  that 

(A)  See  now  Jud.  Act,  1873,  §  25  (8);  Ee       (m)  6  El.  &  Bl.,  273. 
Paris  Skating  Rink  Co.,  6  Ch.  D.,  731.  (n)  8  El.  &  Bl ,  512. 

(I)  Norrls  v.  Irish  Land  Co.,  S  El.  &  Bl., 
512. 


GENERAL  CHARACTER  OF  THE  JURISDICTION.  5 

the  courts  of  common  law  could  not  by  means  of  the  writ  of 
mandamus  enforce  the  actual  execution  of  contracts  which 
resulted  in  imvate  rights  only  and  not  in  duties  in  which 
the  public  were  interested. 

§  13.  (2)  Before  the  passing  of  the  common  law  proced- 
ure act,  1854,  it  was  a  matter  of  question  whether  in  detinue 
the  delivery  of  the  specific  chattel  could  be  obtained  if  the 
defendant  chose  to  pay  the  damages  assessed  instead  of  de- 
livering up  the  chattel ;  but  all  such  doubts  are  removed  by 
the 78th  section  of  that  act,  which  provides  that  "the  court 
or  a  judge  shall  have  power,  if  they  or  he  see  fit  so  to  do, 
upon  the  application  of  the  plaintiff  in  any  action  for  the 
detention  of  any  chattel,  to  order  that  execution  shall  issue 
for  the  return  of  the  chattel  detained,  without  giving  the 
defendant  the  oj^tion  of  retaining  such  chattel  upon  paying 
the  value  assessed." (c*) 

§  14.  If  a  contract  were  entered  into  between  A.  and  B. 
for  the  delivery  by  B.  of  a  certain  chattel  on  payment  of  a 
certain  sum  by  A.,  and  A,  made  the  payment  but  B.  refused 
to  deliver  the  chattel,  an  action  for  its  detention  would  lie 
in  a  court  of  common  law  at  the  suit  of  A.,  and  at  his  elec- 
tion execution  might  issue  for  the  return  of  the  chattel. 
This  looks  very  like  a  specific  performance  of  the  contract, 
but  was  not  such  in  fact.  The  complaint  of  A.,  in  the  case 
supposed,  was  not  that  the  contract  had  been  broken,  but 
that  the  chattel  had  been  detained.  He  did  not  aver  that 
the  contract  otight  to  be  performed  and  that  the  chattel 
ought  to  be  made  his  ;  but  he  alleged  that  the  contract  had 
been  performed,  and  that  therefore  the  chattel  was  his,  and 
the  defendant's  detention  wrongful.  In  short,  the  contract 
came  into  controversy,  if  at  all,  only  as  the  title  of  the 
plaintiff. 

§  15.  (3)  Lord  Mansfield,  C.  J.,  has  remarked  that 
"  pecuniary  damages  tipon  a  contract  for  payment  of  money 
are,  from  the  nature  of  the  thing,  a  specific  performance,  "(j?) 
But  the  remark  seems  hardly  strictly  accurate.  No  doubt 
the  sum  agreed  to  be  paid  will  be  the  measure  of  damages, 
and  the  amount  paid  will  be  the  same  whether  the  contract 
be  performed  or  broken.    But  in  the  former  case  the  money 

(o)  Of.  Ord.  LII,  r.  6.  (p)  In  Johnson  v.  Bland,  2  Burr.,  1066. 


6  FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

is  paid  in  performance  of  the  contract;  in  the  latter  case  it  is 
paid  as  satisfaction  for  its  non-performance.  It  is  evident 
that  the  consequences  of  the  two  payments  would,  therefore, 
be  different. 

§  16.  (4)  According  to  the  old  common  law,  a  covenant  by 
A.  to  convey  lands  to  B.  (which  was  called  a  covenant  real) 
could  be  enforced  by  a  special  writ  of  covenant,  which  was 
in  the  nature  of  a  specific  performance  of  that  covenant. 
The  writ  was  to  the  sheriff  to  command  A.  that  he  keep  his 
covenant  with  B. ;  and  the  relief  for  non-performance  was 
not  in  damages  but  by  means  of  a  prcecipe  quod  reddat  of 
the  land  in  question.  This  writ  of  covenant  was  the  com- 
mencement of  proceedings  in  fines  before  their  abolition.  (§') 

§  17.  In  one  case  the  ecclesiastical  courts  exercised  a 
jurisdiction  in  the  nature  of  specific  performance.  When 
man  and  woman  had  entered  into  a  marriage  contract  per 
nerha  de  prcesenti,  one  refusing  might  be  sentenced  by  the 
ecclesiastical  court  to  celebrate  the  marriage  in  facie  ecclesice 
accordingly,  and  for  refusal  to  obey  might  be  excommuni- 
cated and  imprisoned  on  a  writ  de  excommunicato  capiendo 
until  he  or  she  submitted  to  obey  the  ordinary  ;  and  a  like 
jurisdiction  was  exercised  in  the  case  of  contracts  per  lierha 
defuturo,  though  the  process  for  contumacy  was  in  certain 
cases  different. (r)  But  by  the  statute  26  Geo.  II,  ch.  33,  s.  13, 
and  afterwards  by  statute  4  Geo.  lY,  ch.  76,  s.  27,  this  juris- 
diction of  the  ecclesiastical  courts  was  abolished. 

§  18.  From  what  has  been  already  said,  it  appears  that 
the  origin  of  this  branch  of  equitable  jurisdiction  is  not  to 
be  sought  in  the  Roman  law.'  Perhaps  it  is  rather  to  be 
found  in  the  ecclesiastical  or  canon  law,  which  seems  to 
have  recognized  the  obligation  of  actual  performance  of  the 
terms  of  the  contract.  The  decretals  of  Gregory,  under  the 
title  De  Faxtis,  contain  a  chajDter,  headed  ^^  Judex  debet 
studiose  agere  nt  promts s a  adlmpleantur^''^  in  which  it  is 
laid  down,  '-'■  Btndiose  agendum  est  ut  ea  qnce  promittuntur 

(q)  Fitzh.  Natura  Brevinm, "  Covenant  to  makes  his  heroine  sue  to  the  king  for  the 

Levy  a  Fine; "  3  Bla.  Com.,  156.  specific  performance  of  a  written  contract  to 

(r)  2  Burn's  Eccl.  Law  (1st  ed.),  Marriage,  marry  her. 
ch.  2,  p.  .0.    In  the  Maid  of  Honor  Massinger 

1  7^//*'  irJiere  contract  is  executed.'\  The  specific  perforinauce  of  contract  may- 
be refiLsed  by  a  court  of  equity,  which  it  would  not  set  aside  if  executed. 
Jackson  v.  Asliton,  11  Peters,  229;  Clitlierall  v.  Ogilvie,  1  Dessans  Eq.,  250; 
Barksdale  v.  Payne,  Riley  S.  C.  Ch.,  174;  Seymour  v.  Delancey,  3  Com.,  445. 


jl, 


GENERAL  OHAKACTER  OF  THE  JURISDICTION.  7 

opere  compleanticr.''\s)  Chaucer,  too,  in  the  commencement 
of  the  Friars  Tale,  describing  the  jurisdiction  exercised  by 
an  archdeacon,  enumerates  contracts  as  one  of  the  matters 
which  were  subject  to  his  cognizance. 

"Whilom  there  was  dwellyng  in  my  countre 
An  erchedeken,  a  man  of  gret  degre, 
That  boldely  did  cxecucioun, 
In  punyschyng  of  fornicacioun, 
Of  wicchecraft,  and  eek  of  bauderye, 
Of  diffamacioun,  and  avoutrie, 
Of  chirclie-reves,  and  of  testamentes, 
Of  contractes,  and  of  lak  of  sacraments, 
And  eek  of  many  another  maner  cryme, 
"Which  needith  not  to  reherse  at  this  tyme." 

On  such  a  point  as  this  the  authority  of  Chaucer  appears 
entitled  to  much  weight.  He  is  said  to  have  been  bred  to 
the  law ;  and  it  is  certain  that  parts  of  his  tales  exhibit  an 
acquaintance  even  with  the  fonns  of  law ;  as,  for  instance, 
the  Doctors  Tale,  where  the  "pitous  bill''  presented  to 
Appius  by  Claudius  (v.  178  et  seq.)  forcibly  recalls  the  form 
of  a  bill  of  complaint  in  the  court  of  chancery.  But  perhaps 
this  inquiry  into  the  origin  of  the  jurisdiction  is  needless. 
It  may  have  had  its  source,  not  in  some  pre-existing  system 
of  jurisprudence,  but  in  the  plain  principles  of  morality  and 
the  common  sense  of  the  judges  who  founded  and  enlarged 
the  equitable  jurisdiction  of  the  court  of  chancery. 

§  19.  The  earliest  trace  of  this  jurisdiction  in  specific  per- 
formance which  the  industry  of  legal  antiquaries  has  dis- 
covered appears  to  be  a  case  in  the  reign  of  Richard  II,  and 
to  have  related  to  the  sale  of  land.(z5)  In  a  case  in  the  Year 
Book  of  8  Edw.  IY,(w)  the  jurisdiction  is  fully  recognized. 
The  case  arose  on  a  promise  to  indemnify  the  plaintift',  and 
the  Lord  Chancellor  laid  down  that  there  was  remedy  in 
chancery  where  the  plaintiff  was  damaged  by  the  non-per- 
formance of  a  promise  ;  and  Genny,  J.,  said  that  if  I  prom- 
ise you  to  build  you  a  house  and  do  not  do  it,  you  may 
have  remedy  by  sul)po}na.  In  the  reign  of  Henry  Y I,  cases 
are  recorded  in  which  the  jurisdiction  was  involved.     In  the 

(s)  Decret.  Greg.  9,  lib.  1,  tit.  35,  cap.  3.  is  "faire  a  vous  unmeMon."    Query,  should 

(0  1  Spence,  Eq.  Jur.,  645.    See,  also,  2  not  this  be  rendered  "  to  make  over  to  you  a 

Powell,  Contr.,  4  et  seq.  house? '"    The  text-books  all  seem  to  render 

(w)  p'age4,  b!  The  language  of  Genney,  J.,  it  "to  build." 


8  FKY  ON  SPECIFIC  PERFOEMANCE  OF  CONTRACTS. 

21  Henry  VII, («)  a  case  occurs  where  Finenx,  C.  J.,  in  dis- 
cussing the  extent  of  tlie  action  on  the  case  observed,  that 
if  one  bargains  with  me  that  I  shall  have  his  land  to  me  and 
my  heirs  for  £20,  and  that  he  will  make  the  estate  over  to 
me  and  I  pay  the  £20,  but  he  will  not  make  over  the  estate 
to  me  according  to  the  covenant,  I  may  have  an  action  on  the 
case  and  am  not  bound  to  sue  out  a  subpoena,  (w)  Brooke, 
in  his  Abridgement,  (x)  after  saying  that  in  the  case  stated  an 
action  on  the  case  would  lie,  adds  significantly  :  "But  note 
that  by  this  he  will  get  nothing  but  damages,  but  by  sub- 
poena the  Chancellor  can  compel  him  to  convey  the  estate 
or  imprison  him  ut  dicitur.'''' 

§  20.  The  reign  of  Elizabeth,  and  the  early  part  of  the 
reign  of  the  first  James,  afford  other  instances  of  the  exer- 
cise of  the  jurisdiction. (?/)  But  it  did  not  establish  itself 
without  great  jealousy  on  the  part  of  the  common  law 
courts,  of  which  a  curious  illustration  is  to  be  found  in  the 
case  of  Bromage  v.  Gennings,(^)  in  the  14  James  I.  Brom- 
age  sued  Gennings  in  the  Court  of  the  Marches  of  Wales  for 
not  executing  a  lease  according  to  his  bargain,  and  from  the 
statement  of  the  plaintiff' s  counsel  it  appears  to  have  been 
a  suit  for  specific  performance  and  not  to  recover  damages, 
and  this,  he  added,  is  usually  done  in  chancery.  There- 
upon the  defendant  moved  for  a  prohibition  and  obtained 
it,  Coke,  Doddridge,  and  Haughton  saying  that  chancery 
OQght  not  to  do  so,  for  then  to  what  purpose  are  the  actions 
on  the  case  and  covenant ;  and  Coke  added  that  this  would 
subvert  the  interest  of  the  covenantor  who  understands 
that  it  is  at  his  election  either  to  lose  the  damages,  or  to 
make  the  lease.  Doddridge  observed  that  if  a  decree  was 
made  for  the  execution  of  the  lease,  and  he  did  not  choose 
to  execute  it,  there  would  be  no  other  remedy  than  impris- 
onment. So  complete  was  the  unanimity  of  feeling  in  the 
court  that  Serjeant  Harris,  the  respondent's  counsel,  said 
that  the  part  he  took  in  the  matter  was  against  his  con- 
science. 

Nevertheless,  from  this  time  forward,  the  jurisdiction  ap- 
pears to  have  been  well  established  and  in  frequent  exercise. 

(v)  1  Spence,  Eq.  Jur.,  645;  C.  P.  Cooper,       {x)  Action  sur  le  case,  pi.  72. 
Appx^  381.  (y)  1  Spence,  Eq.  Jur.,  645. 

(w)  Page  41 ,  a.  {z)  Kolle  Bep.,  354, 368.    See,  too,  infra,  670. 


GENERAL  CHARACTER  OF  THE  JITRISDICTIOX.  9 

§  21.  Before  proceeding  further,  it  will  be  well  to  distin- 
guish the  jurisdiction  usually  described  as  that  in  specific 
performance  from  some  kindred  ones  formerly  exercised  by 
the  court  of  chancery.-  By  that  expression  is  usually  un- 
derstood that  peculiar,  and,  as  it  is  called,  extraordinary 
jurisdiction,  which  that  court  exercised  in  respect  of  e5cecu- 
tory  contracts  as  contrasted  with  executed  contracts.  An 
executory  contract  is  one  which  is  not  intended  between  the 
parties  to  be  the  final  instrument  regulating  their  relations ; 
an  executed  contract  is  one  which  is  intended  to  be  thus 
final,  (a)  The  difference  may  be  illustrated  by  the  contrast 
between  an  agreement  (say  on  the  dissolution  of  a  partner- 
ship), to  execute  a  deed  containing  certain  covenants,  and 
the  deed  itself  containing  these  covenants.  The  agreement 
is  an  executory  contract ;  the  deed  is  an  executed  contract. 
An  action  founded  on  the  agreement  would  be  strictly  an 
action  for  specific  performance ;  an  action  founded  on  the 
deed  would  not  be  so  described,  and  it  could  have  been 
entertained  by  the  court  of  chancery  only  on  the  ground 
that  an  injunction  or  an  account  was  prayed  for,  or  that 
some  independent  jurisdiction  of  the  court  was  invoked.  It 
could  not  have  been  supported  on  the  ground  of  specific 
performance  as  ordinarily  used. 

§  22.  Actions  for  specific  performance  of  executory  con- 
tracts differ  from  actions  for  the  performance  of  trusts. 
For  contracts  are  for  the  most  part  contained  in  legal  instru- 
ments which  give  rise  to  legal  rights  ;  and  specific  perfonn- 
ance  is  therefore  only  an  alternative  remedy  in  lieu  of 
damages.  On  the  contrary,  trusts  are  constituted  by  instru- 
ments which  are  of  equitable  force  only  so  fjir  as  the  trust 
is  concerned,  in  respect  of  which  therefore  before  the  judi- 
cature acts  a  suit  in  equity  was  the  only  mode  of  relief. 

§  23.  From  actions  for  specific  performance  we  must 
further  distinguish  actions  for  the  delivery  of  a  chattel  in 
specie.  This  may  be  a  mode  of  specific  performance  when 
the  right  to  the  chattel  flows  from  a  contract.'     But  the 

(a)  Per  Lord  Sclbome  In  Wolverhampton    See,  also,  1  Powell,  Contr.,  2;55;  and  infra* 
and  Walsall   Railway  Co.   v.  London   and    §  822. 
Korthwestern  Railway  Co.,  L.  R.  16  Eq.,  439. 

'  Several  articles  purchased.']  Specific  performance  will  be  decreed  as  to  all, 
"where  the  plaintiff  can  only  be  compensated  in  damages  for  some,  of  several 
articles  purchased  by  him.     McGowin  v.  Remington,  12  Pa.  St.,  56. 


10  FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

court  of  chancery  had  (as  we  shall  see  [6])  an  independent 
jurisdiction  to  decree  the  delivery  up  of  unique  articles, 
whether  tlie  right  to  them  resulted  from  contract  or  not. 

ij  tJ4.  Again,  from  actions  for  specific  performance  we 
must  distinguish  those  cases  in  which,  by  reason  of  fraud  or 
the  breach  of  some  fiduciary  relationship,  a  constructive 
trust  arises.  Cases  sometimes  of  a  mixed  nature  have 
arisen ;  as,  for  instance,  when  by  a  contract  to  give  up  part 
of  an  estate  if  purchased,  A.  persuaded  B.  not  to  compete 
with  liim  as  a  purchaser.  On  A.'s  refusal  to  abide  by  his 
contract,  B.  might  have  sued  him,  alleging  at  once  the  con- 
tract and  the  breach  of  A.'s  duty  as  agent. (c) 

We  shall  hereafter  see  {d)  that  the  peculiar  doctrines  of  the 
court  as  to  the  specific  performance  of  executory  contracts 
do  not  necessarily  apply  to  the  other  forms  in  which  the 
court  gi'ants  specific  relief. 

§  25.  There  is  an  observation  often  made  with  regard  to 
the  jurisdiction  in  specific  performance  which  remains  to  be 
noticed.  It  is  said  to  be  in  the  discretion  of  the  court.' 
The  meaning  of  this  proposition  is  not  that  the  court  may 
arbitrarily  or  capriciously  perform  one  contract  and  refuse 
to  perform  another ;  but  that  the  court  has  regard  to  the 
conduct  of  the  plaintiff  and  to  circumstances  outside  the 
contract  itself,  and  that  the  mere  fact  of  the  existence  of  a 
valid  contract  is  not  conclusive  in  the  plaintiff' s  favor,  (e)  ' '  If 
the  defendant,"  said  Plumer,  Y.  C,  "can  show  any  circum- 
stances dehors,  independent  of  the  Meriting,  making  it  in- 

(b)  Infra,  §  57.  (.d)  Infra,  §  S-J-2  et  seq. 

(c)  SeeChattockv.AIuller,SCh.D.,177,181.        (e)   Lamare  v.  DLson,  L.  E.  6  H.  L.,  414. 

'  Neither  party  to  a  contract  is  entitled  to  a  decree  for  specific  performance 
as  a  matter  of  right,  the  granting  or  withholding  such  relief  is  always  in  the 
sound  discretion  of  the  court :  this  is  the  rule  as  laid  down  by  all  the  authori- 
ties, and  sustained  in  a  long  chain  of  decisions.  Pyrke  v.  Waddington,  10 
Hare,  1;  Cox  v.  Maddleton,  2  Drew,  209;  Bennett  v.  Smith,  16  Jur.,  422;  Wat- 
son V.  Marstou,  4  De  G.  M.  &  G.,  230;  Waters  v.  Howard,  1  Md.  Ch.,  112; 
Blackmilder  v.  Loveless,  21  Ala.,  371;  Hudson  v.  Layton,  5  Harring.,  74; 
Young  V.  Daniels,  2  Iowa,  126;  Rudolph  v.  Covell,  5  id.,  126;  Anter  v.  Miller, 
18  id..  405;  Waters  v.  Howard,  8  Gill.,  262;  Smoot  v.  Rea,  19  Md.,  398;  Hes- 
ter V.  Hooker,  7  Sm.  &  Marsh,  768;  Tobey  v.  County  of  Bristol,  3  Story,  800; 
Pickering  v.  Pickering,  38  N.  H.,  400;  Humbard  v.  Humbard,  3  Head  (Tenn.), 
100:  Scott  V.  Whiltour,  20  HI.,  316;  Doyle  v.  Harris,  11  R.  I.,  539.  Where 
the  vendor  refused  to  fulfill,  as  required  hy  the  terms  of  the  contract :  Held, 
by  the  Court  of  Appeals  in  Xew  York,  that  the  right  to  maintain  a  suit  for 
specific  performance  was  perfect.  Peters  v.  Delaplaine,  49  N.  Y.,  362;  see 
McComas  v.  Easley,  21  Gratt.,  23;  Hale  v.  Wilkinson,  31  id.,  75;  Beach  v. 
Dyer,  93  111.,  295. 


CtENERAL  OIIAEACTER  of  the  JURISDICTION".  11 

equitable  to  interpose  for  the  purpose  of  a  specific  perform- 
ance, a  court  of  equity,  having  satisfactory  information 
upon  that  subject,  will  not  interpose." (./)  But  of  these 
circumstances  the  court  judges  by  settled  and  fixed  rules  ; 
hence  the  discretion  is  said  to  be  not  arbitrary  or  cajDricious, 
"but  judicial ;  {g)  hence,  also,  if  the  contract  has  been  entered 
into  by  a  competent  party,  and  is  unobjectionable  in  its 
nature  and  circumstances,  specific  performance  is  as  much 
a  matter  of  course  and  therefore  of  right  as  are  damages.  (/^) 
The  mere  hardship  of  the  results  will  not  affect  the  discre 
tion  of  the  court. '(0 

(/)  In  Clowes  v.  Higginson,  1  V.  &  B.,  527.  {h)  Hall  v.  Warren,  9  Ves.,  605,  608. 

Ig)  Goring  v.  Xash,  3  Atk.,  ISO;  White  v.  (z)  Haywood  v.  Gope,  25  Beav.,  140,  where 

Damon,  7  Ves.,  30,  35;  Buckle  V.  Mitchell,  18  Lord   Roniilly,  M.  R.,  fully  discusses  the 

id.,  100,  111;  Revell  v.  Hussey,  2  Ball  &  B.,  nature  of  the  discretion  in  specific  pertbrm- 

^88.  ance. 

'  Rule  as  to  specific  j)erformance.'\  It  is  as  much  a  matter  of  course  for  a  court 
of  equity,  sitting  as  such,  to  decree  the  specilic  performance  of  a  contract,  as 
for  a  court  of  law  to  give  damages  for  the  breach  of  it,  where  the  matter  con- 
cerns real  estate,  is  valid,  unobjectionable  in  its  nature,  and  in  the  circum- 
stances connected  with  it :  it  must,  however,  be  capable  of  being  enforced. 
Hall  V.  Warren,  9  Ves.,  608;  Haywood  v.  Cope,  25  Bow  ,  140;  Rogers  v.  Saun- 
ders, 16  Me.,  92;  Griffith  v.  Frederick  Co.  B'k,  6  Gill  &  John.,  424;  Pigg  v. 
Corder,  12  Leigh.,  09;  Meeker  v.  Meeker,  16  Conn.,  403;  Seymour  v.  Delancey, 
Cow.,  445;  6  Johns.  Ch.,  222;  King  v.  Merford,  1  N.  J.  Eq.,  274;  Plummer  v. 
Kepler,  26  id.,  481;  Anthony  v.  Leftwich,  3  Rand.  (Va.),  238;  Prater  v.  Miller, 

3  Hawks.,  629;  Turner  v.  Clay,  3  Bibb.,  52;  Frisly  v.  Ballance,  4  Scam.,  287; 
Broadwell  v,  Broadwell,  6  111.,  599:  McMurtrie  v.  Bennett,  Harr.  Chan.  (Mich.), 
124;  Dougherty  v.  Hamston,  2  Black.,  273;  St.  John  v.  Benedict,  6  Johns.  Ch., 
Ill;  McWharter  v.  ]\IcMahn,  1  Clark.  (N.  Y.),  400;  Henderson  v.  Hayes,  3 
Watts.,  148;  Perkinsou  v.  Wright,  3  Han.  &  Michen,  324;  Leigh  v.  Crump,  1 
Ired.  Eq.,  299;  Gould  v.  Womack,  2  Ala.,  83;  Pulman  v.  Owen,  25  id.,  493; 
Ash  y.  Daggj^  6  lud.,  259;  Howard  v.  Moore,  4  Sueed.,  317;  Minturn  v.  Sey- 
mour, 4  Johns.  Ch.,  497;  Jackson  v.  Ashton,  11  Peters,  22a ;  Bowen  v.  Irish,  6 
Bosw.,  245;  Lowery  v.  Buffington,  6  W.  Va.,  249:  Abbott  v.  L'Hommedien, 
10  id.,  677;  Stearns>.  Beckham,  31  Gratt.,  379. 

When  j^idicial  dmretion  cemes.'\  The  relief  demanded  in  an  action  for  the 
specific  performance  of  a  contract  lies  in  the  discretion  of  the  court,  only  so 
far  as  it  must  necessarily  judge  whether,  under  the  circumstances,  the  agree- 
ment is,  or  is  not,  an  inequitable  one.  When  that  fact  is  determined,  judicial 
discretion  ceases.     Goodwin  v.  Collins,  4  Houst.  (Del.),  28;  King  v.  Hamilton, 

4  Pet.,  310;  Lee  v.  Kirby,  104  Mass.,  420;  Wedgwood  v.  Adams,  6  Beav.,  600. 


I 


12  FRY  ON  SPECIFIC  PKKFORMANCE  OF  CONTRACTS. 


CHAPTER  II. 

OF  THE   EXTENT   OF   THE  JURISDICTION. 

§  26.  It  lias  already  been  in  substance  observed  that  if  a 
contract  be  made  and  one  party  to  it  make  default  in  per- 
formance, there  appears  to  result  to  the  other  party  a  right 
at  his  election  either  to  insist  on  the  actual  performance  of 
the  contract,  or  to  obtain  satisfaction  for  the  non-perform- 
ance of  it.(rt)  It  may  be  suggested  that  from  this  it  follows 
that  a  perfect  system  of  jurisprudence  ought  to  enforce  the 
actual  performance  of  contracts  of  every  kind  and  class, 
except  only  when  there  are  circumstances  which  render 
such  enforcement  unnecessary  or  inexpedient,  and  that  it 
ought  to  be  assumed  that  every  contract  is  specifically  en- 
forceable until  the  contrary  be  shown.  But  so  broad  a 
proposition  has  never,  it  is  believed,  been  asserted  by  any 
of  the  judges  of  the  court  of  chancery,  or  their  successors 
in  the  high  court  of  justice,  though,  if  prophecy  were  the 
function  of  a  law  writer,  it  might  be  suggested  that  they 
will  more  and  more  approximate  to  such  a  rule.* 

Judges  have  sometimes  dwelt  upon  those  negative  cir- 
cumstances which  render  specific  performance  unnecessary 
or  inexpedient ;  sometimes  on  those  affirmative  circum- 
stances which  render  such  performance  necessary  and  ex- 
pedient. 

(a)  See  supra,  §  4. 

'  Rule  ill  respect  to  xchat  contracts  will  be  enforced.']  Every  contract  should  be 
enforced,  the  subject  of  which  is  susceptible  of  substantial  enjoyment ;  pro- 
vided the  circumstances  surrounding  and  connected  with  the  contract,  bring  it 
within  the  rules  entitling  the  party  to  equitable  relief.  Bruck  v.  Tucker,  42 
Cal.,  347;  Johnson  v.  Ricket,  5  id.,  218.  Where  the  agreement  is  in  writing, 
is  fair  and  certain,  is  upon  an  adequate  consideration,  and  is  capable  of  being- 
enforced,  a  court  of  equity  will  decree  specific  performance  as  a  matter  of 
course.  Chance  v.  Beall,  'iO  Ga.,  143;  Rogers  v.  Saunders,  16  Me.,  62:  HoflFer 
V.  Hoffer,  16  N.  J.  Eq.,  147.  Wherever  such  interference  becomes  necessary 
to  prevent  the  improper  diversion  of  a  specific  fund  devoted  to  a  particular  usse, 
or  to  prevent  a  great  and  irreparable  injury,  or  to  avoid  a  multiplicity  of  ac- 
tions ;  a  court  of  equity  has  jurisdiction,  and  will  interfere.  Skinner  v.  Mor- 
ris Canal  k,  Banking  Co.,  27  N.  J.  Eq.,  364;  Farmer  v.  Vallentine,  3  Nebr.,  498. 


EXTENT  OF  THE  JURISDICTION.  13 

§  27.  The  following  propositions  may  help  to  explain  the 
extent  to  ^Yhicll  the  jurisdiction  has  hitherto  gone,  assuming 
in  each  proposition  (unless  otherwise  stated  or  implied)  the 
existence  of  a  contract  binding  in  equity.  The  court  will 
interfere  in  specific  performance  :' 

(1)  Where  there  is  no  common  law  remedy. 

(2)  Where  the  common  law  remedy  exists,  but  is  not 
adequate. 

On  the  contrary,  the  court  will  not  interfere  in  specific 
performance : 

(3)  Where  the  common  law  remedy  exists  and  is  adequate. 

^  Equity  creates  no  right  of  action. '\  Notwitlistauding  a  court  of  equity  will 
supply  a  remedy  where  none  exists  at  law,  yet  it  wilfuot  create  a  rioht  of  ac- 
tion where  the  law  gives  none.  The  rule  which  requires  a  plaintifl'  to  show  a 
present  subsisting  right  of  action,  is  equally  regarded  in  equity  as  at  law.  Hoy 
V.  Hansbrough,  1  Freem.  (Miss.)  Ch.,  533;  see  Foote  v.  Garland,  1  Sm.  & 
Marsh.  Ch.,  95;  Slanson  v.  Watkius,  44  N.  Y.  Supr.  Ct.,  73. 

When  remedy  nwst  often  e.vermed.]  Specific  performance  is  most  frequently 
exercised  in  the  case  of  contracts  concerning  real  estate,  the  remedy  being  ap- 
plied not  only  as  between  the  original  parties,  but  also  to  all  who  claim  under 
them.  Glaze  v.  Drayton,  1  Desau,  109;  McMorris  v.  Crawford,  15  Ala.,  271; 
Ewins  V.  Gordon,  49  N.  H.,  444;  Nesbit  v.  Moore,  9  B.  Mon.,  508;  Tieruan  v. 
Roland,  27  Pa.  St.,  429;  Ambrouse  v.  Keller,  22  Gratt..  769;  Laverty  v.  Moore, 
33  N.  Y.,  658;  Murphy  v.  McVicker,  4  McLean,  253;  St.  Paul  Div.  v.  Brown, 
9  Minn.,  157;  Yarick  v.  Edwards,  1  Hoffm.  Cli.,  382;  Sterling  v.  Klepsattle, 
24  Ind.,  94;  Maddox  v.  Rowe,  23  Ga.,  431;  Vaughn  v.  Barkley,  6  Whart.,392; 
Harding  v.  Metropol.  R.  R.,  L.  R.,  7  Ch.  154;  Eastern  Counties  R.  R.  Co.  v. 
Hawkes,  5  House  of  Lords,  331 ;  Lewis  v.  Lord  Lechmore,  10  Med.,  503;  Hood 
V.  Northwestern  R.  R.  Co.,  8  Eq.,  666;  aff'd,  5  Ch.  App.,  525. 

Clioice  of  Bemedies.]  Notwithstanding  a  vendor  of  real  estate  usually  has  an 
adequate  remedy  at  law,  yet  he  has  a  choice  of  remedies.  Forsyth  v.  McCau- 
ley,  48  Ga.,  402;  Pinkie  v.  Curtiss,  4  Brown's  Ch.,  329;  Carey  v.  Smith.  2  N.  Y., 
60:  Schropell  v.  Hopper,  40  Barb.,  425;  Bryson  v.  Peak,  8  Ired.  Eq.,  310; 
Phyfe  V.  Warden,  5  Paige  Ch.,  268;  Springs  v.  Sanders,  Phill.  (N.  C)  Eq.,  67; 
Finley  v.  Aiken,  1  Grant.  Pa.  Cas.,  83;  Lanison  v.  Barb,  4  Watts.,  27;  Old 
Colony  R.  R.  Co.  v.  Evens,  6  Gray,  25.  In  Deck's  Appeal  (57  Pa.  St.,  467)  and 
Kauff man's  Appeal  (55  Pa.  St.,  383),  the  bill  was  dismissed,  where  the  whole 
object  of  it  was  to  obtain  payment  of  the  purchase  money. 

liule  in  regard  to  personal  property.]  Whatever  may  be  the  nature  of  the 
property,  if  the  plaintiff  has  not  an  adequate  remedy  at  law,  a  court  of  equity 
will  entertain  jurisdiction.  It  is  no  ground  of  demurrer  to  a  bill,  that  it  seeks 
specific  performances  of  a  contract  relating  to  personality.  Carpenter  v.  Mut. 
Safety  Ins.  Co.,  4  Sandf.  Ch.,  408;  Clark  v.  Flint,  22  Pick.,  231;  Roundtree  v. 
McLean,  1  Hemp.,  245;  Sullivan  v.  Fink,  1  Md.  Ch.,  59;  Waters  v.  Howland, 

I  Md.  Ch.,  112;  City  Council  v.  Page,  Spear.  (S.  C.)  Ch.,  159;  Hoy  v.  Hans- 
borough,  1  Freem.  (Miss.)  Ch.,  533;  Lloyd  v.  Wheatly,  2  Jones'  Eq.,  267; 
Johnson  v.  Rickert,  5  Cal.,  218;  Dull"  v.  Fisher,  15  id.,  375;  Furman   v.  Clark, 

II  N.  J  Eq.,  3  Stock.,  306;  Mechanics'  Bk.  v.  Seaton,  1  Peters,  299;  Cutting 
V.  Danna,  25  N.  J.  Eq.,  265;  Corbin  v.  Tracy,  34  Conn.,  325. 

Where  the  jiroperty  has  exceptional  value.]  Specific  performance  will  be  de- 
creed for  the  delivery  of  chattels  which  none  but  the  defendant  can  supply, 
and  Avhich  are  necessary  to  enable  the  plaintiff  to  fulfill  a  contract  with  third 
parties.     Buxton  v.  Lister,  3  Atk.,  385. 

Contracts  for  the  scde  of  stock.]  If  a  breach  of  contract  can  be  fully  compen- 
sated in  damages,  equity  will  not  interfere.     Specific  performance  will  be  de- 


14  FKY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

(4)  Where  tlie  contract  is  such  as  the  court  cannot  per- 
form. 

(5)  Where  the  performance  of  the  contract  would  prove 

useless. 

(6)  Wliere  the  court  would  be  unable  to  enforce  its  own 
judgment. 

(7)  Where  the  enforced   performance    of    the    contract 
would  be  worse  than  its  non-performance. 

(8)  Where  tlie  contract  is  voluntary. 

(9)  Where  the  plaintiff  has  elected  to  proceed  in  some 
other  manner  than  for  specific  performance. 

(10)  AVhere  the  jurisdiction  has  been  taken  away  by 
statute. 

creed,  however,  when  the  contract  to  convey  stock  is  clear  and  definite,  and 
the  uncertain  value  of  the  property  renders  it  difficult  to  do  justice  by  an  award 
of  damages.  White  v.  Schuyler,  1  Abb.  Pr.  (N.  S.),  300;  S.  C,  31  How.  Pr., 
38;  Treasurer  v.  Commercial  Co.,  23  Col.,  390. 

Speciiic performance  as  to  debts.']  Specific  performance  of  a  contract  to  bor- 
row or'lend  money,  will  not  be  enforced  by  a  court  of  equity.  Rogers  v.  Chal- 
lis,  27  Beav.,  175;  Siebel  v.  Mosenthal,  31  L.  J.  C,  326;  Lariss  v.  Gurety,  L. 
R.  5  P.  C,  346.  An  agreement  to  give  security  for  a  debt  will  be  enforced. 
Ashton  V.  Corrigau,  L.  R.,  13  Eq.,  76;  Robinson  v.  Cathcart,  2  Cranch,  590; 
Ogdeu  V.  Ogdea;  4  Ohio  St.,  183;  Stockley  v.  Davis,  17  Ga.,  177.  Aparol 
contract  for  a  mortgage  of  personal  property  was  made,  a  valuable  considera- 
tion being  given  therefor,  and  the  Statute  of  Frauds  not  requiring  the  same  to 
be  in  writing — Held,  that  a  court  of  equity  would  enforce  the  contract.  Trie- 
bert  V.  Burgess,  11  Md.,  452.  The  creditors  of  an  insolvent  firm  agreed  to  sell 
their  claim  to  one  of  their  number  at  twenty-five  per  cent — Held,  that  the  con- 
tract, although  for  the  sale  of  a  debt,  would  be  specifically  enforced,  for  the 
reason  that  the  complainant  has  not  a  clear  and  adequate  remedy  at  law.  Cut- 
ting V.  Dana,  25  N.  J.  Eq.,  265.  The  following  written  agreement  was  made 
by  the  owner  of  a  mortgage  debt :  "that  on  receiving  money  from  another 
person,  he  will  pay  him  a  specific  portion  of  the  debt  when  received,  and  in 
manner  as  received."  Held,  that  such  an  agreement  would  be  specifically  en- 
forced. Buck  V.  Swazey,  35  Me.,  41.  The  vendor  of  land  agreed  to  release 
the  same  from  the  lien  of  a  mortgage.  Held,  that  specific  performance  would 
not  be  decreed.  Bennett  v.  Abrams,  41  Barb.,  619;  Barkley  v.  Barkley,  14 
Rich,  Eq.,  12.  In  Barry  v.  "Walker  (6  B.  Mon.,  464)  land  was  sold,  the  pur- 
chase price  to  be  paid  immediately  in  order  that  the  same  might  be  released 
from  the  lien  of  certain  mortgages;  part  of  the  price  was  paid,  and  a  bill  was 
filed  enjoining  the  vendor,  who  was  insolvent,  from  selling  and  from  commit- 
ting waste.  A  decree  was  obtained.  Afterward  the  purchaser  tendered  good 
notes  for  the  full  amount  of  the  purchase  money,  offered  to  perform,  and  filed 
an  amended  bill  to  compel  a  specific  performance  of  the  contract.  The  land 
was  sold  under  foreclosure,  and  bought  in  by  the  party  to  whom  it  was  origi- 
nally sold,  who  paid  cash  for  the  amount  of  the  lien.  Held,  that  he  had  a 
right  to  extinguish  the  lien  in  that  manner.  Gillis  v.  Hall,  2  Brems.  (Pa.),  342; 
Broadwell  v.  Broadwell,  6  111.,  599;  Dailey  v.  Lichfield,  10  Mich.,  29.  The 
grantee  of  land  executed  a  bond,  the  consideration  being  the  support  of  the 
grantor  for  life,  and,  in  case  of  neglect,  to  recouvey  the  land.  Held,  upon 
failure  to  perform,  that  a  court  of  equity  would  decree  a  re-conveyance.  Rob- 
inson v.  Robinson,  9  Gray,  447.  A  contract  to  indemnify  against  a  pecuniary 
liability  will  be  specifically  enforced,  notwithstanding  its  performance  is  re- 
versed by  a  penalty.  Chamberlain  v.  Blue,  6  Blackf.,  491 ;  Champion  v.  Brown. 
6  Johns.  Ch..  398. 


EXTENT  OT  THE  JUEISDICTION.     .  15 

After  the  foregoing  propositions  have  been  discussed,  it 
will  be  shown : 

(11)  That  the  jurisdiction  is"  against  the  defendant  per- 
sonally. 

Lastly  will  be  considered  : 

(12)  Certain  cases  of  quasi-contract  in  which  the  court 
has  jurisdiction. 

1.  Where  there  is  no  common  laio  remedy. 

§  28.  In  many  cases  though  a  contract  was  in  conscience 
obligatory  upon  both  the  parties  to  it,  yet  the  common  law, 
from  the  strictness  of  its  forms,  afforded  no  remedy  to  the 
j)arty  injured  by  the  other's  non-performance.  The  defect 
of  justice  which  hence  arose  was  avoided  by  the  jurisdiction 
of  equity,  which  in  such  cases  has  comi)elled  the  specific 
execution  of  the  contract,  if  in  other  respects  fit  for  the 
intervention  of  the  court. 

§  29.  By  the  principles  of  the  common  law,  exact  i)er- 
formance  by  the  plaintiff  of  his  i)art  of  the  contract  accord- 
ing to  its  very  terms  must  be  averred  and  proved;  whereas, 
in  equity,  a  distinction  has  been  made  between  those  terms 
w^hich  are  of  the  essence  of  the  contract  and  those  terms 
which  are  not  thus  essential,  and  a  breach  of  which  it  is 
inequitable  for  either  party  to  set  up  against  the  other  as  a 
reason  for  refusing  to  execute  the  contract  between  them. 
In  these  cases  the  doctrine  of  common  law  was  forfeiture, 
the  doctrine  of  equity  is  compensation.  "  Lord  Thurlow,'^ 
to  quote  the  language  of  his  successor  Lord  Eldon,  "used 
to  refer  this  doctrine  of  specific  performance  to  this  :  that  it 
is  scarcely  possible  that  there  may  not  be  some  small  mis- 
take or  inaccuracy  ;  as,  that  a  leasehold  interest  represented 
to  be  for  twenty-one  years,  may  be  for  twenty  years  and 
nine  months  ;  some  of  those  little  circumstances  that  would 
defeat  an  action  at  law,  and  yet  lie  so  clearly  in  compensa- 
tion that  they  ought  not  to  prevent  the  execution  of  the 
contract. "(&)  On  this  ground  the  jurisdiction  rests  in  all 
cases  where  specific  performance  is  decreed  with  compensa- 
tion by  the  plaintiff. 

§  30.  The  fact  that  the  common  law  remedy  has  been  lost 

(6)  In  Mortlock  v.  Buller,  10  Ves.,  305-6.    See,  also,  Stewart  v.  Alliston,  1  Mer.,  26, 32. 


16  FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

by  the  default  of  the  very  party  seeking  the  specific  per- 
formance of  a  contract  will  not  exclude  the  jurisdiction,  if 
it  be"  notwithstanding  conscientious  that  the  contract  should 
be  performed,  as  in  cases  where  the  plaintiff  has  performed 
his  part  substantially,  but  not  with  such  exactitude  as  to  be 
able  to  plead  such  performance  as  the  common  law  courts 
required,  (c)' 

§  31.  But  besides  these  cases,  there  are  many  others  in 
which  the  court  interferes,  because  there  is  no  common  law 
remedy  by  reason  of  something  in  the  subject-matter  of  the 
contract,  (r?)  or  the  parties  to  it,  or  the  form  in  which  it  is 
concluded, 

§  32.  Thus  the  court  will  give  relief  in  respect  of  a  con- 

(c)  Davis  V.  Hone,  2  Sch.  &  Lef.,  341,  347.         (rf)  See  per  James,  L.  J.,  In  Bewley  v.  At- 
kinson, 13  Ch.  D.,  305  (windows J. 

'  This  rule  is  well  established,  and  forms  one  of  the  leading  features  of  equity 
jurisdiction.     Performance  to  the  letter  is  not  required;  and  it  is  sufficient  if 
the  complainant  can  show  that  he  has  not  been  in  fault,  and  that  he  has  taken 
all  proper  steps  toward  performance.     McCorckle  v.  Brown,  9   Smedes  and 
Marsh.,  167;  Coale  v.  Barnej',  1  Gill  &  John.,  324,  and  Voorhees  v.  De  Meyer, 
2  Barb.  Sup.  Ct.,  37,  are  leading  cases  on  this  point.     In  the  former  case  an 
agreement  Avas  entered  into  on  the  27th  of  November,  1813,  between  the  cestm's 
que  trust  for  life,  and  of  the  remainder  in  fee,  and  the  trustee  of  a  certain  estate 
held  by  the  latter  in  fee;  the  object  of  which  was  to  lease  out  certain  unim- 
proved trust  property,  to  secure  to  all  the  cestuis  que  trust  an  immediate  partici- 
pation in  the  profits.     It  was  agreed  that  the  trustees  should  appoint  an  agent 
to  make  leases  for  ninety-nine  years,  with  liberty  of  renewal  for  such  rents  as 
should  be  thought  reasonable  by  the  parties  interested,  payable  to  the  agent,  in 
trust  for  the  cestui^  que  tn/st,  their  executors  and  administrators,  in  certain  pro- 
portions.    On  the  29th  of  September,  1823,  a  bill  was  filed  by  two  of  the  cestuis 
que  trust,  against  the  third,  for  a  specific  execution  of  the  agreement,  on  the 
ground  that  the  defendant,  since  the  year  1818,  had  prevented  the  execution  of 
the  leases,  and  refused  to  do  any  act  toward  carrying  the  contract  into  effect. 
This  charge  was  proved,  and  it  was  held  that  the  court  would,  in  the  exercise 
of  its  duty,  satisfy  the  minor  provisions  of  the  agreement  only  so  far  as  could 
be  done  consistently  with  the  great  design ;  that  the  agreement  containing  pro- 
visions Avhich,  because  of  a  technical  principle  of  law,  could  not  be  literally 
performed,  the  court  would  give  it  that  construction  which  the  rules  of  law 
would  tolerate,  and  the  intention  of  the  parties,  collected  from  the  whole  in- 
strument, would  justify;  that  the  failure  to  comply  with  an  engagement  to  do  a 
merely  nugatory  act  should  not  impair  the  right  of  the  complainants  to  the 
specific  performance  of  the  agreement ;  the  facts  in  the  case  otherwise  sustain- 
ing the  bill ;  and,  further,  that  the  lapse  of  time  did  not  amount  to  laches,  so 
gross  as  to  conclude  the  rights  of  the  parties.     In  Voorhees  v.  De  Meyer,  G. 
agreed  with  D.  to  pay  for  certain  lands  in  five  equal,  annual  installments. 
Twenty-eight  years  after  the  date  of  the  agreement,  havino;  made  payments 
from  time  to  time,  G.  proposed  to  D.  that  he  should  give  liim,  G.,  a  deed  for 
the  lands,  and  seciu-e  the  remaining  payments  by  mortgage  on  the  property. 
D.  tendered  a  deed  which  was  not  satisfactory  and  was  refused,  and  G.  tiled  a 
bill  for  a  specific  performance.     Held,  that  G.  had  not  so  far  departed  from  the 
terms  of  his  contract  as  to  be  refused  relief;  and  that  where  non-compliance 
with  the  terms  of  an  agreement  does  not  go  to  its  essence,  relief  will  be  granted, 
notwithstandiug  the  laches  of  the  party  seeking  to  enforce  performance.     See, 
also,  Shaw  v.  Livermore,-  2  Green's  (Iowa)  Rep.,  338. 


EXTENT  OF  THE  JURISDICTION.  17 

tract  to  assign  a  chose  in  action,  (e)  or  of  a  contract  concern- 
ing the  hope  of  succession  of  an  heir,  (/)  although  no  dam- 
ages could  have  been  recovered  at  common  law  for  contracts 
dealing  with  these  subject-matters,  and  it  will  in  a  proper 
case  specifically  enforce  a  right  of  pre-emption,  and  restrain 
by  injuncion  the  viokition  of  such  a  right,  and  will  specifi- 
cally enforce  a  compromise.  (17)'  In  one  case  Plunier,  M.  R., 
intimated  the  opinion  that  where  a  promissory  note  had 
been  handed  over  for  valuable  consideration  unindorsed,  a 
court  of  equity  would,  at  the  suit  of  the  holder,  compel  the 
transferor,  or  his  jjersonal  representative,  to  indorse  it  in 
order  to  substantiate  the  right  of  the  transferee.  (7^)  A  con- 
tract between  joint  tenants  of  a  copyhold  estate  to  divide  it 
between  them  has  been  specifically  enforced. (/)' 

§  33.  Again,  the  court  will  specificallj^  enforce  a  contract 
to  execute  a  mortgage,  and  that  even  with  an  immediate 
power  of  sale  where  the  money  has  been  actually  advanced 

(e)  1  Mad.  Ch.,362.                       "  combe  Railway  Co  ,  L.  R.  3  Ch.,  377;  Lord 

(/)  Jones  V.  Roe,  3  T.R.,  88,  compared  with  Beauciiamp  v.  Great  Western  Railway  Co., 

Beckley  v.  Newland,  2  P.  Wms.,  182.  and  id.,  745. 

cases  infra,  §  1502  et  seq.    See,  also,  1  Fonbl.  (ft)  Watkins  v.  Maule,2  J.  &  W.,  243;  Byles 

Eq.,  216.  on  Bills  (11th  ed.).  154.    Distinguish  Edge  v. 

{g)  Homfray  v.  Fothergill,  L.  R.  1  Eq.,  567,  Bumlord,  31  Beav.,  247. 

573;  Birmingham  Canal  Co.  v    Cartwright,  (i)  Bolton  v.  Ward,  4  Ha.,  530.    See,  too, 

11  (Jh  D.,  421.    Cf.  Lord  Carington  v.  Wy-  Seton,  530  (contract  for  exchange). 

1  Every  contract  cauuot  be  enforced  in  a  court  of  equity ;  it  is  only  where  it 
is  strictly  equitable  to  do  so,  that  the  legal  intention  and  effect  will  be  carried 
out.     Canterbury  Aqueduct  Co.  v.  Ensworth,  22  Conn.,  608. 

^  Where  a  legal  remedy  is  obstructed,  a  court  of  equity  may  enforce  or  set 
aside  a  contract  to  purchase  lands,  compel  deeds  of  confirmation  to  be  made, 
and  in  a  case  where  deeds  are  lost,  or  not  recorded,  a  court  of  equity  will  inter- 
vene. Blight  V.  Banks,  6  T.  B.  Mon.,  152;  Davis  v.  Hall,  4  id.,  23;  Cummings 
V.  Coe,  10  Cal.,  529.  Where  without  fault  of  the  grantee,  a  deed  was  lost  before 
being  recorded,  the  grantor  was  compelled  to  give  a  duplicate  deed.  A  demand 
must  be  first  made.  Conlin  v.  Ryan,  47  Cal.,  71 ;  see  Lindeman  v.  Rinker.  42 
Ind.,  223.  A  court  of  equity  will  frequently  decline  to  interfere  to  establish 
possession  of  property,  when,  nevertheless,  it  will  refuse  to  disturb  the  posses- 
sion where  it  has  been  obtained  without  its  agency.  Crane  v.  Gough,  4  Md., 
316  Where  a  jurisdiction  has  been  properly  acquired,  a  court  of  equity  will 
settle  the  controversy,  even  in  a  case  which  did  not  afford  original  grounds  of 
jurisdiction.  Brooks  v.  Stoley,  3  McLean,  523;  Pearson  v.  Darrington,  21  Ala., 
169;  Martin  v.  Tidwell,  36  Geo.,  332;  Franklin  Ins.  Co.  v  McCrea,  4  Greene 
(Iowa),  229;  Handley  v.  Fitzburgh,  1  A.  K.  Marsh.,  24;  State  v.  McKay,  43 
Mo.,  594;  Armstrong  v.  Gilchrist,  2  John.  Ch.,  424,  431;  Londer's  Appeal,  57 
Pa.  St. ,  498.  It  was  held  that  a  judgment  for  specific  performance  could  not 
be  granted,  even  in  a  case  where  the  "evidence  was  suflicieut  to  warrant  such  a 
suit.  This  was  in  an  action  by  the  vendors  of  real  property  against  the  pur- 
chaser foi-  damages  for  the  non-fulfillment  of  contract.  The  trial  was  without 
a  jury.  Towle  v.  Jones,  19  Alb.  Pr.,  449 ;  see  Cowenhoren  v.  City  of  Brooklyn, 
88  Barb.,  9.  Damages  for  breach  of  a  covenant  to  improve  land  sold  for  a 
public  square  recovered  in  an  action;  held  no  bar  to  a  subsequent  suit  for 
specific  performance  of  a  covenant  to  keep  the  premises  forever  open  as  such 
public  square.     Stuyvesant  v.  Mayor  of  New  York,  11  Paige  Ch.,  414. 

2 


18  FKY  ON  SrECIFIC  PEKFOKMANCE  OF  CONTRACTS. 

either  before  or  at  the  time  of  the  contract;^')  though  it  will 
not  so  enforce  a  mere  agreement  to  lend,  advance,  or  pay 
money(70  (though  the  loan  be  one  to  be  secured  by  mortgage), 
while'it  rests  entirely  unperformed  either  by  the  intended 
lender (/)  or  by  the  intended  borrower. (m)  "The  Statute  of 
Frauds  does  not  apply  to  such  a  case.  Therefore  if  the 
court  has  jurisdiction  in  such  a  case,  any  conversation  may 
be  made  the  subject  of  a  suit  for  specific  performance  :  thus 
if  two  friends  are  walking  together  and  one  says,  '  Will  you 
lend  me  £100  at  £5  per  cent,  for  a  year  on  good  security  'I ' 
and  the  other  says  '  I  will,'  that  conversation  might  be  made 
the  subject  of  a  suit  for  specific  performance  in  this  court 
if,  on  the  next  day,  one  friend  should  say  '  I  do  not  want 
the  money,'  or  the  other  should  say  'I  will  not  lend  it.' 
Nothing  would  be  more  difficult  and  more  dangerous  than 
the  task  which  this  court  would  have  to  perform  if  it  were 
to  investigate  cases  of  that  description,  "(ti) 

§  34.  In  one  case  there  was  a  contract  by  B.  to  advance 
C.  £3,000  on  the  security  of  some  leasehold  houses  for  five 
years.  B.  advanced  £600  on  deposit  of  the  lease  of  one  of 
the  houses.  The  contract  was  (in  the  opinion  of  the  court) 
that  B.  should  not  be  entitled  to  call  for  the  lessor's  title. 
Nevertheless  he  did  call  for  it,  and  on  its  being  refused, 
filed  a  bill  for  specific  performance  of  the  contract,  or  for 
the  sale  of  the  property  to  repay  him  the  £600  and  interest. 
The  court  considered  that  the  plaintiff  was  in  the  wrong, 
but  the  defendant  submitting  to  jjerform  the  contract  with- 
out showing  the  lessor' s  title,  and  the  plaintiff"  electing  to 
have  a  decree,  made  him  pay  the  costs  of  the  suit,  as  the 
price  of  its  interference,  (o) 

§  35.  In  another  case  S.,  who  had  become  liable  for  a 
debt  of  W.,  and  with  whom  W.  had  deposited  title  deeds 
as  an  indemnity,  was  held  entitled  to  have  a  written  mem- 
orandum of  the  terms  of  the  deposit  signed  by  W.  (p) 

§  36.  Again,  though  no  action  would  lie  at  common  law 
in  respect  of  a  contract  to  convey  by  a  particular  day,  which 
was  rendered  impossible  by  the  death  of  the  contractor  be- 

O)  Aehton  v.  Corrlgan,  L.  E   13  Eq.,  76;       (m)  Sichel  v.  Mosenthal,  30  Beav.,  371. 
ttermann  v.  Hodges,  L.  R.  16  Eq.,  18.    Cf.       (n)  Per  Lord  Komilly,  M.  R.,  In  Rogers  v. 

Taylor  v.  Eckereley,  2  Ch.  D.,  302.  Challis,  27  Beav.,  178. 

(*)  Larios  v.  Bonany  y  Gurety,  L.  R.  5  P.       (o)  Bass  v.  Clivley,  Taml.,  80. 
C,  346.    Cf.  Brough  v.  Oddy,  1  R.  &  M.,  55.         (p)  Sporle  v.  Whayman,  20  Beav.,  607. 

(0  Rogers  v.  Cballis,  27  Beav.,  175. 


EXTENT  OF  THE  JUEISDICTION.  19 

fore  that  day,  yet  specific  performance  would  be  decreed  by 
the  court  of  chancery  against  the  heir,  {qy 

§  37.  The  court  of  chancery  has  also  interfered  specifi- 
cally to  execute  a  contract  evidenced  by  a  bond  given  to  a 
v^ife  by  her  husband,  or  to  a  husband  by  his  wife,(r)  before 
marriage,  though  the  bond  was  suspended  at  common  law 
by  the  intermarriage. "* 

§  38.  The  same  principle  equally  applies  to  give  the 
court  jurisdiction  where,  though  the  contract  is  in  its  nature 
such  that  a  breach  of  it  can  be  satisfied  by  damages,  yet 
from  some  particular  circumstances  this  remedy  is  not  open 
to  the  aggrieved  party  ;  therefore  where  a  contract  for  the 
purchase  of  timber-trees  was  comprised  in  a  memorandum 
which  appeared  not  to  be  the  final  contract,  but  was  to  be 

(5)  See  arguments  of  counsel  in  Milnes  v.  v.  Acton,  Prec.  Ch.,  237.  See,  too,  Gage  v. 
Gery,  U  Ves.,  403,  and  1  Mad.  Ch.,  362.  Acton,  1  Salk.,  325. 

(r)  Cannel  v.  Buckle,  2  P.  Wms.,  242 ;  Acton 

'  At  common  law,  choses  in  action  are  not  assignable.  Greenby  v.  Wilcox, 
2  John.,  1;  Coolidge  v.  Ruggles,  15  Mass.,  338.  But  they  may  be  assigned  in 
equity.  Breckenridge  v.  Churchill,  3  J.  J.  Marsh.,  11.  Hopkiss  v.  Eskridge, 
2  Ired.  Eq.,  54;  Spring  v.  Car.  Ins.  Co.,  8  Wheat.,  268.  And  the  assignee  has 
an  equitable  right  enforceable  at  law  in  the  assignor's  name.  Dix  v.  Cobb,  4 
Mass.,  511;  Parker  v.  Grout,  11  Mass.,  157,  and  note;  Wheeler  v.  Wheeler,  9 
Cow.,  34;  Eastman  v.  Wright,  6  Pick.,  316;  Welch  v.  Mandeville,  1  Wheat., 
236.  In  reference  to  heirs  expectant,  it  is  said,  in  Davidson  v.  Little,  22  Penn. 
(10  Harris),  245,  that  an  unexecuted  contract  for  the  sale  of  land  will  not  be 
enforced  in  a  court  of  equity,  if  it  be  found  unconscionable.  But  after  it  has 
once  been  executed  the  chancellor  will  not  interfere  on  account  of  its  hardship, 
except  in  cases  of  an  heir  expectant,  when  the  court  will,  upon  that  ground 
alone,  declare  it  void, 

'  In  Glaze  v.  Drayton,  1  Dessau.,  109,  the  contract  of  the  ancestor  was  de- 
creed to  be  performed  by  the  infant  heir  at  law,  who  was  allowed  six  months, 
after  coming  of  age,  to  show  cause.  Upon  clear  proof  of  a  parol  contract  and 
a  part  performance  thereof,  the  same  decree  was  given  against  one  Wilkinson, 
a  minor,  in  the  case  of  Wilkinson  v.  Wilkinson,  1  Dessau.,  201.  In  Saunders 
V.  Simpson,  2  Har.  &  John.,  81,  where  a  father,  in  1777,  gave  a  bond  to  his 
daughter,  binding  himself  to  convey  certain  lands,  but  died  without  doing  so, 
specific  performance  was  decreed  against  his  devisees,  on  a  bill  filed  by  her  in 
1797.  See,  also,  Newton  v.  Swazy,  8  N.  H.  R.,  9.  In  New  York,  infant  or 
adult  heirs  of  a  vendor  are  bound  to  fulfill  his  contract  to  convey  lands,  to  the 
extent  of  the  estate  that  descends  to  them,  and  may  be  compelled  to  do  so, 
though  not  named  in  the  contract.  But,  ordinarily,  the  court  will  not  compel 
the  heir  to  enter  into  personal  covenants,  in  pursuance  of  an  agreement  by  the 
ancester.  Therefore,  where  the  vendor  agreed  to  convey  land  by  a  good  and 
sufficient  deed,  free  of  all  incumbrances,  and  died  leaving  a  widow  entitled 
to  dower,  and  heirs,  one  of  whom  was  an  infant,  and  the  heirs  were  not  named 
in  the  contract,  it  was  held,  in  a  suit  against  them  for  a  specific  performance  of 
the  agreement  to  convey,  that  the  infant  defendant  must  convey,  but  without 
covenants,  and  that  the  other  defendants  must  also  convey,  but  with  covenants 
against  their  own  acts,  on  payment  of  the  sum  due  by  the  terms  of  the  con- 
tract, deducting  out  of  each  payment  due,  and  to  become  due,  a  proportionate 
share  of  the  amount  that  should  be  found  to  be  the  value  of  the  widow's  right 
of  dower.     Hill  v.  Ressegieu,  17  Barb.,  162. 


20  FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

made  complete  by  subsequent  articles,  so  that  it  was  doubt- 
ful whetlier  tlie  contract,  as  it  then  stood,  would  not  have 
been  considered  at  law  as  incomplete,  and  so  the  plaintiff 
have  been  debarred  of  any  remedy  there.  Lord  Hardwicke 
held  that  tlie  contract  was  one  which  the  court  of  chancery 
could  specifically  perform.  (5)  In  another  case  a  contract  to 
purchase  a  debt  was  enforced  against  the  purchaser,  on  the 
ground  that  the  debt  had  not  been  so  assigned  to  him  as  to 
enable  him  successfully  to  sue  at  law  -,{1)  and  in  the  case  of  a 
contract  for  the  purchase  of  government  stock,  the  fact  that 
the  plaintiff  was  not  the  original  holder  of  the  scrip,  but 
merely  the  bearer,  which  rendered  it  doubtful  whether  he 
could  maintain  an  action  at  law  upon  the  contract,  was  one 
ground  on  which  the  court  of  chancery  was  held  to  have 
jurisdiction.  (?/)' 

§  39.  It  is  said  that  before  the  time  of  Lord  Somers  the 
practice  of  the  court  of  chancery  was  to  send  the  parties  to 
law,  and  to  entertain  the  suit  only  in  case  of  the  plaintiff 
there  recovering  damages,  (^^  a  practice  which,  of  course,  in- 
volved the  proposition  that  specific  performance  could  not 
be  granted  except  in  cases  where  damages  could  be  recovered 
at  law.'  The  case  in  which  this  principle  was  the  most 
distinctly  maintained  was  that  of  Dr.  Bettesworth  v.  The 
Dean  and  Chapter  of  St.  Paurs,(?o)  decided  by  Lord  King  in 
1726,  with  the  assistance  of  Raymond,  C.  J.,  and  Price,  J. 
A  lease  had  been  granted  by  the  defendants  previously  to 
the  disabling  statute  of  13  Eliz.,  with  a  covenant  to  renew 
for  ninety-nine  years,  and  the  plaintiff  sought  a  renewal  for 
the  term  allowed  by  the  statute,  which  the  Lord  Chancellor 
refused,  on  the  ground  that  no  action  could  have  been  main- 
tained on  the  covenant  after  the  passing  of  the  statute.  "I 
take  this  to  be  a  certain  clear  rule  of  equity,"  said  Ray- 

(s)  Buxton  V.  Lister,  3  Atk.,  383;  but  see  (m)  Doloret  v.  Rothschild,  1  S.  &  S.,  590. 

infra,  §§  317,  488.  (v)  Per  Clarke,  M.  R.,  in  Dodsley  v.  Kin- 

(0  Wright  V  Bell,  5Pri.  325.  Of.  Adderley  ner^ley,  Ambl.,  406. 

T.  Dixon,  1  S.  &  S  .  607.  (w)  Sel.  Cas.  in  Ch.,  66. 

'  See  Costwaight  v.  Hutchinson,  2  Bibb.,  407;  Gould  v.Womack,  2  Ala.,  83. 
In  New  York  all  contracts  between  persons  in  contemplation  of  marriage  remain 
in  full  force  after  such  marriage  takes  place.  Laws  of  New  York,  1849,  p.  529, 
ch.  375,  §  3. 

*  Where  it  is  not  clear  that  a  court  of  law  can  give  the  relief  asked  for,  chan- 
cery will  entertain  jurisdiction.  West  v.  Wayne,  3  Miss.,  16 ;  Wheeler  v.  Clinton 
Canal  Bank.  Harring  Ch.,  449;  Philips  v.  Thompson,  1  John.  Ch.,  133. 


EXTENT  OF  THE  JUKISDICTION.  21 

mond,  C.  J.,{x)  "that  a  specific  performance  sliall  never  be 
comx3elled  for  the  not  doing  of  which  the  law  would  not  give 
damages.  The  covenant  to  oblige  them  to  make  a  lease  for 
ninety -nine  years  is  gone,  and  damages  cannot  be  recovered 
for  part  of  a  covenant,  and  I,  therefore,  am  of  opinion  equity 
cannot  interfere."  This  decision,  which  was  opposed  by 
the  opinion  of  Jekyll,  M.  R..,  was  reversed  in  the  House  of 
Lords  ;  and  it  is  abundantly  evident,  from  the  cases  already 
cited,  that  the  jurisdiction  at  present  exercised  is  not  re- 
strained within  these  limits,  and  that  there  are  many  cases 
in  which  specific  performance  is  granted  where  no  action  for 
damages  could  be  maintained,  (i/)' 

2.  WJiere  flier e  is  no  adequate  common  law  remedy. 

3.  Where  tliere  is  an  adequate  common  law  remedy. 

§  40.  The  propositions  that  the  court  will  interfere  in 
specific  performance  where  the  common  law  remedy  exists, 
but  is  not  adequate,  and  that  the  court  will  not  interfere 
where  the  common  law  remedy  exists  and  is  adequate,  being 
in  the  nature  of  converse  propositions  will  be  conveniently 
considered  together.^ 

(x)  Page  69.  Steward,  3  Mer.,  491,  to  which  Mr.  Justice 

(«/)  Per  Lord  Redesdale  in  Lennon  v.  Nap-  Story  (Eq.  Jur.,  §  741)  has  referred  as  a  dic- 

per,  2  Sch.  &  Lef.,  6S2;  Cannel  v.  Buckle,  2  turn  of  Grant,  M.  R.,  is   the   language  of 

P.  Wms.,242.    The  passage  in  Williams  v.  counsel  fl/ffwewfto. 

'  "The  whole  class  of  cases  of  specific  performance  of  contracts  respecting 
real  estate,  where  the  contract  is  by  parol,  and  there  has  been  a  part  perform- 
ance, or  where  the  terms  of  the  contract  have  not  been  strictly  complied  with, 
and  yet  equity  relieves  the  party,  are  proofs  that  the  right  to  maintain  a  suit  in 
equity  does  not,  and  cannot,  properly,  be  said  to  depend  upon  the  party's 
liaving  a  right  to  maintain  a  suit  at  law  for  damages.  In  cases  of  specific  per- 
formance, courts  of  equity  sometimes  follow  the  law,  and  sometimes  go  far 
beyond  the  law ;  and  their  doctrines,  if  not  whollj^  independent  of  the  point, 
whether  damages  would  be  given  at  law,  are  not,  in  general,  dependent  upon 
it.  Whoever  should  assume  the  existence  of  a  right  to  damages  in  an  action  at 
law,  as  the  true  test  of  the  jurisdiction  in  equity,  w^ould  find  himself  involved 
in  endless  perplexity ;  for  sometimes  damages  may  be  recoverable  at  law,  where 
courts  of  equity  would  yet  not  decree  a  specific  performance;  and,  on  the  other 
hand,  damages  may  not  be  recoverable  at  law,  and  yet  relief  would  be  granted 
in  equity."  Story's  Eq.  Jur.,  §  741.  See,  also,  Getchell  v.  Jewett,  4  Greenl., 
350;  Andrews  v.  Andrews,  28  Ala.,  432,  which  coincide  in  the  doctrine  as  ex- 
plained by  Mr.  Justice  Story,  and  as  laid  down  in  the  text.  There  ^are,  how- 
ever, contrary  decisions  in  this  country.  See  Allen  v.  Beal,  3  A.  K.  Marsh., 
554,  and  Smith  v.  Carney,  1  Litt.,  298.  In  this  latter  case  relief  was  denied 
upon  a  verbal  contract  for  the  sale  of  land,  after  a  delay  of  five  years,  upon  the 
express  ground  that  equity  would  not  relieve  where  the  law  would  not  award 
damages,  and  msumpsit,  the  only  action  which  could  be  maintained  at  law,  the 
contract  having  been  made  before  the  introduction  of  the  Statute  of  Frauds, 
was  barred  by  the  delay. 

^  A  specific  performance  will  be  decreed,  when  the  party  wants  the  thing  in 
specie,  and  cannot  be  otherwise  compensated;  where  an  award  of  damages 


z' 


22  FRY  OX  SPECIFIC  PERFORMAKCE  OP  CONTRACTS. 

§  41.  The  only  remedy  at  common  law  for  the  non-per- 
formance of  a  (contract  was  in  damages,  that  is  to  say,  in  the 
payment  of  a  sum  of  money  by  the  party  who  had  broken 
the  contract  to  the  party  injured  by  that  breach.'  If 
money  were  in  all  cases  a  perfect  measure  of  the  injury 
done  by  this  breach,  it  is  evident  that  an  exact  equivalent 
for  the  wrong  might  be  made,  and  that  the  justice  done 
would  be  complete.  But  money  is  an  exact  equivalent  only 
when  by  money  the  loss  sustained  by  the  breach  of  the  con- 
tract can  be  fully  restored.  Now  in  a  vast  variety  of  cases 
this  is  not  so ;  for  though  one  sovereign  or  one  shilling  is  to 
all  intents  and  purposes  as  good  as  any  other  sovereign  or 
shilling,  yet  one  landed  estate,  though  of  precisely  the  same 
market  value  as  another,  may  be  vastly  different  in  every 
other  circumstance  that  makes  it  an  object  of  desire ;  so 
that  it  evidently  follows  that  there  would  be  a  failure  of 
justice,  unless  some  other  jurisdiction  supplemented  that 
of  common  law,  by  compelling  the  defaulting  party  to  do 
that  which  in  conscience  he  is  bound  to  do,  namely,  actually 
and  specifically  to  perform  his  contract.  The  common  law 
treats  as  universal  a  proposition  which  is  for  the  most  part, 
but  not  universally,  true,  namely,  that  money  is  a  measure 
of  every  loss.(^)  The  defect  of  justice  which  arose  from  this 
universality  of  the  common  law  principle  was  met  and 
remedied  in  certain  cases  by  the  jurisdiction  of  courts  of 
equity  to  compel  specific  performance. 

§  43.  Even  when  money  is  alone  in  question,  the  com- 
mon law  remedy  is  in  some  instances  less  beneficial  than 
that  afforded  by  courts  of  equity,  and  where  this  is  so,  a 
ground  is  laid  for  specific  performance  if  otherwise  a  proper 
remedy.  So  where  A.  gave  a  note  to  B.,  and  C.  agi^eed  with 
B.  for  the  relinquishment  of  his  (B.'s)  claim  against  A.  on 
the  payment  of  certain  sums,  for  which  the  notes  were,  in 
the  contemplation  of  equity,  to  stand  only  as  a  security,  it 
was  held  that  the  court  of  chancery  would  specifically  per- 

(3)  See  Aris.  Eth  Nic.  lib.  9,  ck.  1. 

would  not  put  him  iu  a  situation  as  beneficial  as  if  the  agreement  were  specifi- 
cally performed;  or  where  the  compensation  in  damages  would  fall  short  of  the 
redress  to  which  he  is  entitled.  Philips  v.  Berger,  2  Barb.  Sup.  Ct.,  608;  Phyfe 
V.  Warden,  3  Edw.  Ch.,  47.  Stuyvesant  v.  Mayor,  etc.,  of  New  York,  11 
Paige's  Ch.,  414;  Nevitt  v.  Gillespie,  1  How.  (Miss.),  108. 

'  See  McLane  v.  Elmer,  4  Ind..  239. 


EXTENT  OF  THE  JURISDICTION.  23 

form  the  contract,  thougli  the  relations  between  the  parties 
might  have  been  worked  out  by  actions  at  law.  (a) 

§  43.  Leach,  Y.  C,  seems  to  have  considered  that  the 
fact  that  the  remedy  in  damages  given  at  common  law  de- 
pended for  its  beneficial  effect  upon  the  personal  responsi- 
bility of  the  defendant,  gave  the  other  party  to  the  contract 
a  right  to  sue  in  equity  for  its  actual  x)erformance.(5)  It  is 
evident  that  this  principle  applies  to  all  damages,  and,  if  it 
were  admitted,  would  give  the  court  jurisdiction  by  way 
of  specific  performance  in  all  cases  of  contract,  whether  for 
the  sale  of  chattels  or  of  any  other  nature,  which  certainly 
is  not  the  law  of  the  court. 

In  another  case  the  same  learned  judge  appears  to  have 
held  that  the  circumstance  that  damages  at  law  would  not 
accurately  represent  the  value  of  the  contract  to  either 
party  was  a  ground  for  granting  specific  performance.  The 
contract  in  that  case  was  for  the  sale  of  debts  proved  under 
two  commissions  of  bankruptcy  ;  and  Leach,  Y.  C,  granted 
specific  performance,  considering  that  to  compel  the  plaintiff 
to  accept  damages  would  be  to  compel  him  to  sell  those  divi- 
dends which  were  of  unascertained  value  at  a  conjectural 
price. (e)  The  learned  judge  just  named  seems  to  have  shown 
a  tendency  to  extend  the  jurisdiction  in  specific  performance 
somewhat  more  liberally  than  most  other  judges  ;(^)  and  the 
mere  want  of  exactitude  in  the  measure  of  damages  at  com- 
mon law  has  not  always  been  held  a  sufficient  ground  for 
the  equitable  jurisdiction.' 

§  44.  The  ground  of  this  jurisdiction  having  been  the  in- 
adequacy of  the  remedy  at  common  law,  it  followed  that 
where  that  remedy  was  adequate,  chancery  did  not  interfere 

(a)  Beech  v.  Ford,  7  Ha  ,208  (affirmed  bv  per  Lord  Hatherley  (then  Wood.V.  C},in 

Lord  Cottenham).    Cf.  Cogent  v.  Gibson,  33  Pollard  v.  Clayton,  1  K.  &  J.,  462. 

Beav.,  557  (purchase-money  of  patent).  (rf)  See  Withy  v.  Cottle,  1  S.  &  S.,594;  Ken- 

(6)  Doloret  v.  Rothschild,  1  S.  &  S.,  590.  ney  v.  Wexham,  6  Mad.,  355;  Cf.  Brealey  v. 

(c)  Adderleyv.  Dixon,  1  S.  &  S.,  607.    See  Collins,  You.,  317,  330. 


1  When  the  court  will  refuse  to  act.}  In  all  cases  where  it  is  clearly  inequita- 
ble to  grant  it,  the  court  will  refuse  to  do  so.  In  exercising  its  discretionary 
powers,  it  will  act  with  more  freedom  than  when  exercising  its  ordinary  powers. 
Munch  V.  Shobel,  37  Mich.,  1C6;  St.  Paul.  Div.  v.  Brown,  9  Min.,  157;  SneU 
V.  Mitchell  65  Me.,  48;  Tyson  v.  Watts,  1  Md.  Ch.,  13;  Fish  v.  Lightmer,  44 
Mo.,  2«8;  Hudson  v.  King,  2  Heisk.  (Tenn.),  560;  Quinn  v.  Roath,  37  Conn., 
16;  Higginbottom  v.  Short,  25  Miss.,  160;  Inglehart  v.  Veil,  75  111.,  63; 
Sweeney  V.  O'Hara,  id.,  34;  Willard  v.  Taylor,  8  Wall.,  557;  Marble  Co.  v. 
Ripley,'lO  id.,  339;  Borgan  v.  Daughdrill,  51  Ala.,  312;  Daniel  v.  Frasier,  40 
Miss.,  507;  O'Brien  v.  Fenty,  48  Md.,  562. 


24  FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

to  compel  specitic  performance.'  It  is  on  tliis  ground  that 
the  conrt  has  generally  refused  specific  performance  in  re- 
spect of  government  stock  or  chattels,  as  will  be  hereafter 
seen,  and  refuses  it  in  all  cases  where  the  contract  is  sat- 
isfied by  a  mere  payment  of  money,  (e) 

§  45.  The  principle  has  been  recognized  in  several  other 
cases.  It  was  one  of  the  grounds  on  which  Knight  Bruce 
and  Lord  Cran worth,  L.  JJ.,  acted  in  dismissing  the  bill  in 
Lord  James  Stuart  v.  London  and  Northwestern  Railway 
Co.,(/)  so  far  as  regarded  specific  performance  and  only  put- 
ting the  defendants  on  terms  to  make  certain  admissions  in 
any  action  at  law  to  be  brought  by  the  plaintiff  against 
them— their  lordships  considering  that,  the  railway  having 
been  abandoned  and  complete  relief  being  in  their  opinion 
obtainable  at  law,  the  case  was  not  one  for  specific  perform- 
ance. It  was  also  one  of  the  reasons  alleged  by  Lord  Cran- 
worth,  L.  J.,  for  dismissing  the  bill  in  Webb  v.  Direct 
London  and  Portsmouth  Railway  Co.,(^)  he  considering 
that  under  the  circumstances  the  vendor  could  obtain  com- 
plete relief  at  law.  The  authority  of  these  decisions  was 
subsequently  questioned  by  Lord  St.  Leonards, (A)  but  only 
as  to  the  applicability  of  the  principle  to  the  circumstances, 
and  not  as  to  the  validity  of  the  iDrinciptle  itself. 

§  46.  In  one  case  specific  x^erformauce  was  sought  of  a 
contract  for  a  tenancy  from  year  to  year,  the  contract  speci- 
fying that  the  tenant  was  in  all  respects  to  abide  by  the 
terms  entered  into  by  a  ptrevious  tenant,  and  that  the  tenant 
should  pay  for  a  contract  to  be  drawn  up;  it  was  contended 
that  the  court  would  therefore  interfere  for  the  purpose  of 
settling  the  proper  terms  of  the  contract.  But  the  court 
thought  the  remedy  at  law  was  adequate,  and  that  the  full 

Ce)  See  Brough  v.  Oddy,  1  R.  &  M.,  55;  (/)  1  De  G  M.  &G.,721. 

J.arios  V.  Bonany  y  Gurety,  L.  R.  5  P.  C,  ((/)  I  De  G.  M.  &  G  ,  521. 

346;  and  cf.  the  cases  on  contracts  with  a  ih)  Hawkes  v.  Eastern  Counties  Railway 

penalty,  infra,  §  114  et  seq.  Co.,lDeG.M.  &G.,737;  S.  C.,5  H.  L.C.,331. 

^  There  is  probably  no  principle  of  equity  more  thoroughly  established  than 
thib.  Dhetegoft  v. "Loudon  Assur.  Co.,  Mosely's  E.,  83^  S.  C,  1  Atkin's  R, 
547;  Rose  v.  Clarke,  1  Y.  &  Col.,  534;  Hammond  v.  3Iessenger,  9  Sim.,  827; 
Rees  V.  Parish,  1  McCord's  Ch.,  59;  Bell  v.  Bemen,  3  Murph.,  273;  Sampson 
V.  Hunt,  1  Root,  317;  Pitkin  v.  Pitkin,  7  Cow.,  315;  Adair  v.  Win- 
chester, 7  Gill  &  .John.,  114;  Carter  v.  United  Ins.  Co.,  1  John.  Ch.,  463; 
Smiley  v.  Bell,  Mart,  et  Yerg.,  378;  Mosely  v.  Boush,  4  Rand..  392;  Thomp- 
son V.  Mauley,  16  Geor.,  440;  Mechanics'  Bank  v.  Debolt,  1  Ohio  St,  591; 
Bonebright  v.  Pease,  3  Mich.  (Gibbs),  318;  Degsett  v.  Hart,  5  Florida,  215. 


EXTENT  OF  THE  JUEISDICTION.  25 

terms  of  the  contract  might  be  shown  there,  and  therefore 
refused  to  decree  performance.  (/) 

§  47.  On  this  ground  also,  as  well  as  that  of  the  inca- 
pacity of  the  court  to  execute  the  works,  the  court  of  chancery 
refused  specifically  to  perform  a  contract  to  make  a  branch 
railway,  although  the  contract  for  the  execution  of  it  had 
been  entered  into  during  the  pendency  of  the  bill  before 
Parliament,  arid  when  several  of  the  directors  had  thoughts 
of  withdrawing  the  bill,  and  would  have  in  fact  done  so 
(as  the  bill  of  comi^laint  alleged),  but  for  the  contract  in 
question.  (,/) 

§  48.  And  where  a  bill  sought  the  specific  performance  of 
a  contract  which  would  have  been  effected  by  a  mere  account 
of  profits  and  a  payment  of  the  amount  found  due,  and  there 
was  no  obstacle  to  the  recovery  of  the  amount  at  law,  the 
court  dismissed  the  suit,  (A*) 

§  4d.  In  analogy  with  this  principle,  in  a  case  in  which 
the  plaintiffs  sought  the  specific  performance  of  a  contract 
to  grant  a  way-leave  for  a  railway  for  a  term  of  sixty  years, 
and  between  the  filing  of  the  bill  and  the  hearing  the  plaint- 
iffs had  obtained  statutory  powers  to  take  the  land  in  fee^ 
Stuart,  V.  C,  considered  this  to  be  a  circumstance  strongly 
influencing  the  \iiscretion  of  the  court  against  specific  per- 
formance. (Z) 

§  50.  It  may  appear,  at  first  sight,  that  inasmuch  as 
money  in  exchange  for  the  estate  is  what  the  vendor  of  land 
is  entitled  to,  he  has  a  complete  remedy  in  an  action  for 
damages,  and  therefore  cannot  sustain  an  action  for  the. 
specific  performance  of  the  contract.  But  on  further  con- 
sideration it  will  be  apparent  that  damages  will  not  place 
the  vendor  in  the  same  situation  as  if  the  contract  had  been 
performed  ;  for  then  he  would  have  got  rid  of  the  land  and 
of  all  the  burdens  and  liabilities  attaching  to  it,  and  would 
have  the  purchase-money  in  his  pocket ;  whereas,  after  an 
action  for  damages,  he  still  has  the  land,  and,  in  addition, 
damages — representing,  in  the  opinion  of  a  jury,  the  differ- 

(i)  Clayton  v.  Illingworth,  10  Ha.,  451.  v.  Midland  Railway  Co.,  6  W.  R.,  2.33;  4  Jur. 

(J)  South  Wales  Railway  Co.  v.  Wythes,  1  N.  S..  273.    Cf.  Bagnell  v.  Edwards,  I.  R.  la 

K.  &  J.,  186;  S.  C,  5  De  G.  M.  &  G.,  880.  See,  Eq..  215. 

too.GreenhlUv.  Isle  of  Wight  (Newport  June-        (0  Meynell  v    Surtees,  3  Sm.  &  Gif,  101. 

tion)  Railway  Co.,  19  W.  R  ,  345.  See,  also,  per  Lord  Craiiwonh  in  Morgan  v. 

(i)  Ord  \.  Johnston,  1  Jur.  N.  S.,  1063;  4  Miiman,  3  De  G.  M.  &  G.,35. 
W.  R.,  37  (Stuart,  v.  C).    See,  also,  Sturge 


■26  FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

■ence  between  tlie  stipulated  price  and  the  price  which  it 
would  probalily  fetch,  if  re-sold,  together  with  incidental 
■expenses  and  any  special  damage  which  he  may  have  suf- 
fered. (?/i)  The  doctrine  of  equity,  with  respect  to  the  con- 
version of  the  land  into  money,  and  of  the  money  into  land 
upon  the  execution  of  the  contract, (?i)  and  the  lien  which 
the  vendor  has  on  the  estate  for  the  purchase-money,  and 
his  right  to  enforce  this  by  the  aid  of  the  court,  are  addi- 
tional reasons  for  extending  the  remedy  to  both  parties. 
Accordingly,  it  is  well  established  that  the  remedy  is 
mutual,  and  that  the  vendor  may  bring  his  action  in  all 
•cases  where  the  purchaser  could  sue  for  specific  perform- 
ance of  the  contract,  and  this  independently  of  any  ques- 
tion on  the  Statute  of  Frauds,  (o) 

§  51.  On  the  principle  that  damages  are  a  sufficient  satis- 
faction, it  is  now  perfectly  settled  that  specific  j^erformance 
will  not  be  enforced  of  a  contract  for  the  transfer  of  stock 
in  the  public  funds. 

§  52.  It  api^ears,  that  in  one  instance,  Lord  Hardwicke 
did  grant  sj^ecific  performance  of  such  a  contract  \{p)  but 
in  the  earlier  case  of  Cuddee  (or  Cud)  v.  Ilutter,(5')  Lord 
Macclesfield,  overruling  a  decision  at  the  rolls,  refused  to 
perform  a  contract  to  transfer  South  Sea  stbck,  though  by 
the  decree  he  undertook  to  arrange  the  settlement  between 
the  parties.  His  Lordship  assigned  three  reasons  for  this 
•decision  :  first,  the  nature  of  the  subject-matter  of  the  con- 
tract ;  secondly,  the  circumstance  that  the  defendant  was 
not  possessed  of  the  stock  at  the  time  of  the  contract ; 
and,  thirdly,  that  the  liability  to  sudden  rise  and  fall  in 
stock  made  the  day  a  most  material  part  of  the  contract, 
and  therefore  rendered  it  an  improper  one  for  the  court  to 
carry  into  execution.  This  principle  was  adopted  by  Gil- 
bert, C.  B.,(r)  and  stated  to  be  the  settled  doctrine  of  the 
•court  by  Lord  Eldon.(5) 

§  53.  In  a  case  before  Leach,  Y.  C,  a  bill  for  the  specific 
performance  of  a  contract  to  sell  Neapolitan  stock  was  sup- 
ported ;  but  this  was  j^artly  on  the  ground  of  its  x-raying 

(m)  Eastern  Counties  R'y  Co.  v.  Hawkes  6  Ha.,  594;  Kenney  v.  Wexham,  6  Mad.,  355 

5  H.  L.  C,  331,  359,  376;  Lewis  v.  Lord  Lech  (p)  See  Nutbrown  v.  Thornton,  10  Ves  ,16l. 

mere.  10  Mod,  5U3.  (q)  5  Vin.  Abr.,  538,pi.21 ;  S.  C,  1  P.Wms., 

'"}  }^.i^     .  570;  1  W.  &  T.,  L.  C,  756  (4th  ed.). 

,.1''\.9",?**'^'^  "■  Turrell,  1  Y.  &  C.  C.  C,  133,  (r)  Cappur  v.  Harris,  Bunb.,  135. 

150;  Walkerv.  Eastern  Counties  Railway  Co.,  (a)  In  Nutbrown  v.  Thornton,  10  Ves  ,  161, 


EXTENT  OF  THE  JUKISDICTION.  27 

the  delivery  of  the  certificates  which  would  constitute  the 
plain tift'  the  proprietor  of  a  certain  quantity  of  the  stock, 
and  i)artly  because  the  plaintiff,  not  being  the  original  scrip- 
holder,  but  merely  the  bearer,  it  was  doubtful  whether  he 
would  be  able  to  maintain  his  action  at  law.(^)  In  another 
case  the  same  judge  overruled  a  demurrer  to  a  bill  by  the 
vendor  of  a  life-annuity  payable  out  of  dividends  of  stock, 
on  the  ground  that  the  purchaser  could  clearly  maintain 
such  a  bill,  and  that  the  remedy  must  be  mutual.  (2^^)  But 
it  seems  that  the  court  would  not  enforce  specific  perform- 
ance of  a  contract  to  sell  a  life-interest  in  the  public 
funds,  (-y) 

§  54.  With  regard  to  shares  in  companies  the  same  prin- 
ciple does  not  apply.  "In  my  opinion,"  said  Shadwell, 
V.  C.,(^)  "there  is  not  any  sort  of  analogy  between  a  quan- 
tity of  £3,  per  cents  or  any  other  stock  of  that  description 
(which  is  always  to  be  had  by  any  person  who  chooses  to 
apply  for  it  in  the  market),  and  a  certain  number  of  rail- 
M^ay  shares  of  a  particular  descrij^tion,  which  railway  shares 
are  limited  in  number,  and  which,  as  has  been  observed,  are 
not  always  to  be  had  in  the  market;"  and,  accordingly, 
specific  performance  was  enforced  of  a  contract  to  sell  a  cer- 
tain number  of  railway  shares,  the  shares  not  being  particu- 
larized. In  a  subsequent  case,  Lord  Chelmsford  stated  that 
there  was  no  doubt  that  a  contract  for  the  sale  of  railway 
shares  is  capable  of  being  enforced  \{x)  and  in  a  subsequent 
chapter(2/)  many  recent  cases  will  be  referred  to,  which  have 
arisen  in  resi)ect  of  contracts  for  the  sale  of  shares.  It  may 
have  been  on  this  j^rincii^le  that  Lord  King  disallowed  a  de- 
murrer to  a  bill  for  the  transfer  of  York  building  stock  ;(z) 
but  a  different  view  seems  to  have  been  previously  enter- 
tained by  Lord  Macclesfield,  inasmuch  as  he  dismissed  a 
Mil  for  the  transfer  of  £1,000  of  the  same  stock. («)' 

(0  Doloret  V.  Rothschild,  1  S.  &  S.,  590.  (x)  Cheale  v.  Kenward,  3  De  G.  &  J.,  27. 

(M)  Withy  V  Cottle,  1  S.  &  S  .  174.  (y)  Part  VI,  ch.  1. 

(V)  Brealey  v.  Collins,  You  ,  317,  330.  (z)  Colt  v.  Nettervill,  2  Smi.,  .S04. 

(w)  Duncuft  V.  Albrecht,  12  Sim  ,  189, 19i).        (a)  Dorison  v.  Westbrook,  5  Vm.  Abr.,o40, 

See  Jackson  v.  Cocker,  4  Beav.,  59.  pi.  22. 


'  See  Story's  Eq.  Jur.,  §  744:  Ferijuson  v.  Paschall,  11  Miss  ,  267;  Brown  v. 
Gilliland.  3  Dessau.,  539 ;" Strasbourg  R.  R.  Co.  v.  Elchternact,  21  Penn.,  220, 
uiuthorities  in  unison  with  the  text.  A  contract  for  the  sale  of  stock,  on  time, 
by  a  person  who  is  not  the  owner  of  the  stock  at  the  time,  is  void  though  made 
through  the  medium  of  a  broker,  by  whom  the  principal  is  not  disclosed.  And 
money  paid  on  such  a  contract  may  be  recovered  from  the  broker,  at  any  time 


28  FRY  ON  SPECIFIC  PERFUKMANCE  OF  CONTRACTS. 

§  55.  A  vendor  of  shares  may  maintain  an  action  against 
the  purchaser  to  comiiel  him  to  complete  the  purchase  by 
the  execution  and  registration  of  a  proper  transfer,  (&)  and 
to  indemnify  the  vendor  against  future  calls,  (c) 
.  In  like  manner  the  company  may  sue  a  person  who  has 
contracted  with  the  company  to  take  shares  from  it.{d) 
Many  difficult  questions  have  arisen  as  to  the  nature  and 
elfects  of  contracts  to  take  shares,  which  will  be  considered 
separately  in  a  later  chapter,  (.e) 

§  56.  The  court  for  the  most  inivt  refuses  to  interfere  in 
respect  of  chattels,  both  because  damages  are  a  sufficient 
remedy,  and  because  the  price  of  such  articles,  especially 
of  mercliandise,  varies  so  as  often  to  render  the  specific  exe- 
cut  ion  of  contract  for  their  sale  and  delivery  an  act  of  in- 
justice, entailing  perhaps  ruin  on  one  side,  when  upon  an 
action  that  party  might  not  have  paid  perhaps  above  a  sliil- 
ling  damages.  (/')'  As  these  principles,  however,  do  not 
apply  to  all  cases  of  chattels,  exceptions  arise  which  we 
shall  now  consider. 

§  57.  When  the  chattel  in  question  is  unique,  when  there 
is,  over  and  above  the  market  value,  that  which  has  been 
called  the  pretmm  affectionis,  the  court,  whether  the  plain- 
tiff's right  has  arisen  from  contract  or  not,  has  interfered 
and  not  left  him  to  his  common  law  remedy.  The  leading 
case  in  this  branch  of  the  law  is  Pusey  v.  Pusey,(^)  in 

(6)  Shaw  V.  Fi6her,  2  De  G.  &  Sm.,  11 ;  5  (e)  Part  VI,  ch.  1. 

De  G.  M.  &  G.,  596.    Cf.  Ward  and  Henry's  (/)  Per  Lord  Hardwicke  in  Buxton  v.  Lis^ 

Case  (where  the  purchaser  had  filed  his  bill  ter,  3  Atli  ,  384.    In  Norton  v.  Serle,  Finch, 

for  s)>ecifle  performance),  L.  R.  2  Eq  ,  226;  2  149,  Lord  Nottingham  specifically  perfornaed 

Ch.,  431.  a  charter-party  by  directing  the  payments  to 

(c)  vt'ynne  v.  Price.  3  De  G.  &  Sm.,  310;  be  made  in  pursuance  of  it  See,  also,  Clar- 
Walker  v.  Bartlett,  IS  C.  B.,  845.  ingbould  v.  Curtis,  21  L.  J.  Ch.,  541,  and  Lord 

(d)  New  Brunswick,  etc  ,  Co.  v.  Mugger-  Westbury  in  Holroyd  v.  Marshall,  10  H.  L. 
Idge,  4  Drew.,6S6.  See,  also,  Sheffield  Gas  C,  209.  Where  the  delivery  of  chattels  is 
<.onsumers  Co.  v.  garrison,  17  Beav.,  294;  only  part  of  a  contract  otherwise  enforcea- 
Oriental  Inland  Steam  Co.  v.  Briggp,  2  J.  &  ble,  thp  contract  may  be  performed.  Marsh 
H.,625;  4  De  G.  F.  &  J.,  191;  Odessa  Tram-  v.  Milligan,  3  Jurs.  (N.  S.),  979  », Wood,  V.C). 
ways  Co.  v.  Mendel,  8  Ch.  D.,  2.35.  {g)  l  Vern.,  273. 

before  he  has  paid  it  over.  Gram  v.  Stebbius,  6  Paige,  124.  Stock  is  consid- 
ered as  a  chattel,  and,  therefore,  as  will  be  seen  hereafter,  is  perfectly  compen- 
sated in  damages.  Buxton  v.  Lister,  3  Atk.,  883.  And,  indeed,  it  is  viewed 
with  even  less  favor  than  chattels  generally.  Brown  v.  Gilliland,  3  Des.,  529. 
See  further,  Austin  v.  Gillespie,  1  Jones'  Eq.  (N.  C),  261,  and  Bissell  v. 
Farmers  and  Mechanics'  Bank  of  Michigan,  5  McLean,  4t>5. 

'  The  ground  upon  which  courts  of  equity  refuse  to  interfere,  in  cases  of  this 
kind,  is  that  there  is  an  adequate  remedy  provided  at  law;  but  wherever  a 
breach  of  the  contract  cannot  be  compensated  by  damages,  equity  will  grant 
relief.  SuUivan  v.  Fink,  1  Maryl.  Ch.  Decis.,  ,59;  Roundtree  v.  McLean,  1 
Hemp.,  245;  Waters  v.  Howland,  1  Md.  Ch.  Decis.,  112;  Llovd  v.  Wheatley^ 
2  Jones'  Eq.  (N.  C),  267. 


EXTENT  OF  THE  JURISDICTION.  29 

which  the  heir  of  the  family  of  Pusey  recovered  possession 
by  a  bill  in  equity  of  the  celebrated  Pusey  horn;  the 
grounds  of  the  decision  are  insufficiently  reported,  but  the 
case  "turned,"  to  quote  Lord  Eldon's  language  in  respect 
of  it, (7^-)  ''  iii^on  the pretmm  affect ionis,  independent  of  the 
circumstance  as  to  tenure,  which  could  not  be  estimated  in 
damages."  This  has  been  followed  by  other  similar  cases, 
one  having  relation  to  an  ancient  silver  altarpiece,  remarka- 
ble for  a  Greek  inscrii^tion  and  dedication  to  Hercules,  (/) 
another  to  a  tobacco-box  of  a  remarkable  and  peculiar 
kind,(y)  another  to  masonic  dresses  and  ornaments,  (A-)  and 
another  to  a  very  finely  engraved  cherry-stone.  (Z)' 

(fc)  In  Nutbrown  v.  Thornton,  10  Ves.,  163.  bould  v.  Curtis,  21  L.  J.  Ch  ,  541 ;  De  Mattos 

{i)  Duke  of  Somerset  v.  CookBon,  3  P.  v.  Gibson,  4  De  G  &  J.,  276.    Bills  have  been 

Wms.,  390.  filed  for  speciflo  performance  of  contracts  for 

U)  f'ells  V.  Read,  3  Ves.,  70.  the  sale  of  ships.    See  part  VI,  ch.  5,  infra. 

(k)  Lloydv.  Loaring.6Ve8.,773.   See,also,  W  Per  Lord  Hardwicke  in  Pearne  v.  Lisle, 

Savllle  V.  Tancred,  1  Ves.  Sen.,  101 ;  S.  C,  3  Ambl.,  77,  in  which  case  a  specific  delivery 

Sw.,  141,  n.;   Lady  Arundell  v.  Phlpps,  10  of  negroes  v^as   prayed,  "but  that  is  not 

Ves.,  139;  Lowther  v.  Lor<l  Lowther,13  Ves.,  necessary,"  said  his  lordship, "  others  are  as 

55.    A  ship  is  probably  within  this  principle,  good." 
See  Lynn  v.  Chaters,  2  Ke.,  521,  and  Claring- 

'  Wherever  there  is  anything  peculiar  in  the  value  of  the  article,  real  estate 
or  chattel,  that  cannot  be  compensated  in  damages,  because  of  the  especial  value 
which  may  be  placed  upon  it,  on  account  either  of  its  individual  or  associate 
qualities,  courts  of  equity  take  jurisdiction.  Clark  v.  Flint,  2i  Pick.,  281; 
Chamberlain  v.  Blue,  6  Blackf.,  41)1.  In  the  southern  states  numerous  cases 
have  arisen  in  regard  to  slaves,  which  are  well  adapted  to  display  the  true 
grounds  upon  which  equity  enforces,  or  refuses  to  enforce,  a  personal  contract. 
In  South  Carolina,  in  the  earlier  cases,  it  was  held  to  be  a  general  rule,  that 
chancery  did  not  enforce  specific  execution  of  contracts  relating  to  personal 
property,  and  that  the  circumstance  that  slaves  were  the  subjects  of  the  con- 
tract, did  not  create  an  exception.  Farley  v.  Farley,  1  McCord's  Ch.,  506. 
Subsequently,  in  the  case  of  Starter  v.  Gordon,  2  Hill.  Ch.,  121,  the  considera- 
tions which  give  to  domestic  slaves  a  specific  character  and  an  individual  value, 
in  relation  to  their  owner,  were  brought  fully  into  view,  and  it  was  decided, 
that,  as  a  general  rule,  a  bill  will  lie  for  the  specific  delivery  of  shives,  as  for 
the  specific  performance  of  a  contract  for  the  sale  of  lauds,  but  that  there  might 
be  exceptions  to  the  rule.  If  it  appeared  that  the  purchaser  contracted  for  the 
slaves  as  merchandise  to  sell  again,  this,  according  to  the  expression  in  Buxton 
V.  Lister,  would  be  merely  a  matter  in  the  waj^  of  trade,  and,  in  such  a  case, 
complete  justice  might  be  done  by  a  compensation  in  damages.  Shortly  after, 
in  Horry  v.  Glover,  1  McCord,  515,  the  rule  was  laid  down  as  follows:  "That 
if  a  man's  slave  has  come  into  the  possession  of  another,  who  refuses  to  deliver 
him,  or  if  he  has  contracted  for  specific  slaves,  he  has  a  right  to  a  specific  de- 
livery ;  but  if  the  contrary  appears,  that  he  contracted  for  slaves  generally,  with 
no  view  to  any  particular  individuals,  or  if  they  were  contracted  for  as  mer- 
chandise, to  sell  again,  the  remedy  is  at  law."  In  Young  v.  Burton,  1  Mullan's 
Eq.,  256,  the  subject  was  again  discussed  in  the  court  of  errors,  and  the  rule 
was  there  propounded  to  be  thus:  "First,  that  a  bill  well  lies  for  the  specific 
delivery  of  slaves,  generally,  which  are  withheld  from  the  possession  of  the 
rightful  owner.  _  Second,  that  it  is  difficult  to  give  jurisdiction  to  the  court,  to 
state,  in  such  bill,  that  the  slaves  are  the  propert}'  of  the  complainant,  and 
that  their  possession  is  withheld  ])y  the  defendant."  See,  also,  Bobo  v.  Grimbe 
&McMartin.  1  McMull.  Eq.,  304;  Fraser  v.  McClenachan,  2  Rich.  Eq.,  79; 
Ellis  V.  Commander,  1  Strobh's  Eq..  188.  In  the  late  case,  however  of  Bryant 
V.  Robert.  1  Strobh's  Eq.,  335,  the  limits  of  equity  jurisdiction  on  this  subject 


30  FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

§  58.  These  particular  cases  were  suits  grounded  on  tort 
or  trust ;  but  the  same  principle  applies  to  cases  of  contract 
relating  to  chattels. 

were  more  specially  and  precisely  defined,  and  the  generality  of  the  previous 
rule,  perhaps,  somewhat  qualified.  In  that  case  a  slave  had  been  sold,  and  a 
mortg-age  taken  upon  him  for  the  purchase  money,  and  he  had  again  passed 
through  the  hands  of  several  vendees ;  the  sureties  of  the  original  mortgagor 
then  paid  the  debt,  and  took  an  assignment  of  the  mortgage,  and  sought  to 
recover  the  slave.  "I  think."  said  Harper,  C,  "there  is  a  misconception  in 
supposing  this  a  case  in  which  a  bill  will  lie  for  the  specific  delivery  of  a  slave. 
The  general  principle  on  which  such  a  bill  may  be  sustained,  as  determined  by 
the  cases  of  Sartor  v.  Gordon,  Trapier  v.  Glover  and  Young  v.  Burton,  rests 
on  these  grounds :  that  where  an  owner  has  had  possession  of  a  slave,  and  he 
has  been  deprived  of  it  bj^  the  act  of  another,  the  presumption  is,  that  there 
may  be  some  qualities  in  the  slave  which  would  render  him  of  more  value  to 
the  owner  than  could  be  compensated  by  the  price  of  such  a  slave,  estimated 
at  his  mere  market  value.  So,  where  a  party  contracts  for  the  purchase  of 
specific  slaves,  it  is  presumed  that  he  may  have  made  his  contract  with  a  vievr 
to  some  particular  quaUties  in  the  slaves  themselves,  for  which  ordinary  dam- 
ages would  not  be  a  sufficient  compensation.  Or,  as  in  Trapier  v.  Glover, 
where  one  is  entitled  to  slaves  by  the  gift  or  limitation  of  a  friend,  relation  or 
ancestor,  there  is  very  sufficient  reason  why  he  should  have  the  slaves  them- 
selves, instead  of  any  damages  for  their  estimated  value.  A  general  expression 
is  used  in  one  of  the  cases,  that  where  a  party  states  a  defendant  to  be  in  pos- 
session of  his  slave,  he  states  a  case  entitling  him,  prima  facie,  to  the  interfer- 
ence of  this  court.  And  so  it  is;  but  it  must  be  taken  with  the  qualifications  I 
have  suggested  from  the  context  of  the  cases.  An  exception  is  made  in  the 
cases,  when  it  appears  that  without  any  view  to  peculiar  qualities,  there  is  % 
contract  for  slaves,  to  be  sold  again  as  merchandise  The  same  reason  applies, 
and  more  strongly,  in  the  case  of  a  mortgagee  of  slaves.  He  is  not  supposed 
to  know  anything  of  the  peculiar  qualities  of  the  slaves,  except  that  he  might 
form  an  estimate  of  the  market  value  of  such  slaves,  and  certainly  not  to  have 
the  same  attachments  or  knowledge  of  their  character  and  qualifications,  as 
the  owner,  who  has  been  in  possession  of  them  and  has  been  deprived  of  it. 
In  this  court  the  mortgagee,  though  having  the  legal  title,  is  not  considered,  in 
any  manner,  as  the  owner  of  the  slaves ;  as,  in  a  court  of  equity,  in  England, 
the  mortgagee  of  land  is  not  considered  the  owner.  He  is  regarded  as  having 
taken  a  pledge  or  security  for  his  debt,  with  no  view  to  the  possession  of  the 
property  itself.  His  object  is  merely  the  recovery  of  his  money.  In  Alabama, 
principles  quite  the  same  with  those  defined  bv  Mr.  Chanceller  Harper,  are  laid 
aown  in  Savery  v.  Spence,  18  Ala.,  561,  which  related  to  a  contract  about 
slaves,  that  clearly  involved  pecuniary  considerations  only.  "A  court  of 
equity,"  said  Dargan,  J.,  "will  not  decree  a  specific  execution  of  a  contract  in 
reference  to  personal  property,  when  compensation  for  the  breach  of  contract 
in  damages  furnishes  a  complete  and  satisfactory  remedy.  Story's  Eq.  Jur., 
^  26.  A  court  of  equity  will,  in  some  instances,  interfere,  and  decree  a  specific 
performance  of  a  contract,  in  reference  to  personal  property;  but  then  it  must 
be  shown  that  a  court  of  law  cannot  give  full  and  complete  redress  by  compen- 
sation in  damages,  for  a  breach  of  the  contract,  either  from  the  nature  of  the 
contract  itself,  or  from  the  peculiar  character  of  the  subject-matter  of  the  con- 
tract, neither  of  which  is  shown  in  the  present  case,  and  therefore  the  com- 
plainant should  be  remitted  to  a  court  of  law,  which  is  fully  competent  to  give 
redress  in  this  case,  if  there  has  been  a  violation  of  the  terms  of  any  contract 
in  reference  to  slaves."  In  Mississippi,  in  the  case  of  Murphv  v.  Clark,  1  S.  & 
iVl.,  221,  a  bill  was  filed  for  the  specific  delivery  of  slaves,  and  the  objection  to 
the  jurisdiction  was  urged  that  there  was  an  ample  and  complete  remedy  at 
law,  and  that  the  bill  did  "not  disclose  those  circumstances  which  are  neces- 
sary to  authorize  the  interposition  of  equitv,  or,  in  the  technical  phrase  of  the 
books,  the  pretium  affectionis  was  not  set  forth."  Mr.  Justice  Clayton,  after  an 
examination  of  the  authorities,  said  that  the  cases,  to  his  apprehension,  estab- 


^ 


EXTENT  OF  THE  JUKISDICTION.  31 

§  59.  Accordingly  in  Falcke  v.  Gray,  {m)  Kindersley, 
y.  C,  sustained  a  bill  by  a  x^urchaser  for  the  specific  per- 
formance of  a  contract  to  sell  to  him  for  £40  two  china  jars  ; 
and  in  Thorn  v.   The  Commissioners  of  Works, (rt)  Lord 

(?w)  4  Drew.,  651.  Lords,  Harrington  v.  Harrington,  L.  R.  .5  Oh.* 
(n)  32Beav.,490.  Note  thatwhen  the  court  564;  cf.  Wilson  v.  West  Hartlepool,  etc..  Rail- 
has  adjudged  the  delivery  up  of  chattels,  way  Co.  (Xo.  2),  34  Beav.,  414;  Ord.  LVHI- 
execution  of  the  judgment  will  generally  not  r.  16. 
he  stayed  pending  an  appeal  to  the  House  of 

lished  the  principle,  "that  wherever  the  bill  states  circumstances,  from  whicl# 
the  court  may  fairly  infer  that  the  owner  prefers  the  property  in  specie  to- 
damages,  and  that  this  preference  is  of  a  character  which  it  is  not  unreasona- 
ble to  indulge,  and  exists  in  reference  to  property  for  which  damages  at  law 
might  not  be  a  full  compensation,  equity  will  entertain  jurisdiction  "  The 
point  was  not  considered  as  judicially  settled  by  this  case,  and  came  up  again 
in  Butler  V.  Hicks,  11  S.  &  M.,  79,  where  a  majority  of  the  court  confirmed 
the  principle  of  Murphy  v.  Clark.  But  Sharkey,  C.  J.,  dissented,  holding  that 
X)iQ  pretium  affectionU  ahoxAd.  not  be  inferred,  but  established.  The  same  sub- 
ject was  discussed  in  an  interesting  manner  in  Dudley  v.  Mallery,  4  Geor.,  53. 
'•His  honor,  the  presiding  judge,"  said  Lumpkin,  J.,  in  delivering  the  opinion 
of  the  supreme  court  in  error,  "held,  in  accordance  with  the  recent  South. 
Carolina  cases,  that  a  bill  well  lies  in  a  court  of  equity  for  the  specific  delivery 
of  slaves,  which  are  withheld  from  the  possession  of  the  rightful  owner,  and 
that  it  is  sufiicient  to  give  jurisdiction  to  the  court,  to  state  in  such  bills,  that 
the  slaves  are  the  property  of  the  complainant,  and  that  their  possession  is  with- 
held by  the  defendant. "  But  it  may  be  submitted,  that  in  this,  as  well  as  in 
other  cases,  the  subject  has  been  treated  more  with  regard  to  liumanity,  than 
with  reference  to  the  peculiar  doctrines  of  a  court  of  chancery  in  relation  to 
chattels  and  their  specific  delivery.  Thus  the  learned  judge  goes  on  to  say, 
"We  yield  our  unqualified  approval  of  the  motive  which  has  prompted  these 
adjudications,  namely,  humanity  to  the  slave,  the  interest  of  the  owner,  and  a 
just  regard  for  the  ties  which  bind  the  master  and  slave  together.  Those  who 
are  acquainted  with  this  institution  know  that  the  master  and  slave  form  one 
family,  or  social  compact,  being  usually  reared  together  on  the  same  lot  or 
plantation,  and  feeling  toward  each  other  the  kindest  sympathies  of  our  nature. 

*  *  *  Instead  of  weakening,  our  desire  is  to  maintain  and  promote  this 
mutual  attachment  and  good  will.  But  we  cannot,  for  the  very  reasons  assigned 
in  those  cases,  go  to  the  extent  of  holding  that  it  is  sufficient  merely  to  allegein 
the  bill,  that  the  slaves  ought  to  be  recovered,  are  the  property  of  the  complain- 
ant, and  withheld  by  the  defendant.  In  many,  I  am  prepared  to  say  from  my 
own  experience,  in  a  majority  of  the  suits  instituted  for  the  recovery  of  slaves, 
humanity  to  both  races  requires  that  there  should  not  be  a  specific  delivery. 

*  *  *  Female  slaves  are  sometimes  pledged  for  the  payment  of  loaned  money,, 
and  the  borrower  returns  after  the  lapse  of  many  years,  tenders  payment  and 
claims  the  right  to  redeem  his  property,  which  has  multiplied  to  a  numerous 
family;  here,  as  it  often  happens,  the  best  feelings  of  our  nature  are  opposed  to 
the  legal  or  equitable  right.  Slaves,  then,  being  by  our  law  chattels,  we  think  it 
best,  that  as  a  general  rule,  chancery  should  not  entertain  a  bill  for  the  specific 
delivery,  and  that,  to  give  jurisdiction,  it  is  necessary  to  charge  and  prove  peculiar 
circumstance — as,  that  they  are  family  servants,  a  carpenter,  blacksmith, wagoner,, 
hostler,  etc.  This  will  give  the  defendant  an  opportunity  of  stating,  in  his  answer, 

•the  peculiar  circumstances  connected  with  his  possession;  and  the  special  jury, 
under  the  direction  of  the  chancellor,  will  constitute  a  fit  and  proper  tribunal  to 
pass  upon  the  peculiar  features  of  each  case,  and  to  decide  either  a  specific  de- 
livery of  the  property,  or  its  equivalent  in  money."  In  North  Carolina,  in  the 
case  of  Williams  v.  Howard,  3  3Iurph.,  34,  though  the  point  was  not  considered 
as  necessarily  arismg,  the  judges  expressed  their  opinions  upon  it.  "I  have  no 
hesitation  in  giving  it  as  my  decided  opinion,"  said  Taylor,  C.  J.,  "that  the 
reason  of  the  rule  in  relation  to  the  specific  execution  of  contracts  relating  to 
chattels  does  not  apply  to  slaves,  that  they  form  an  exception  for  reasons 


J 


32  FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

Romilly,  M.  R.,  made  a  decree  for  the  specific  performance 
of  a  contract  for  tlie  sale  to  tlie  plaintiff  of  the  arch  stone, 
the  spandrill  stone,  and  the  Braniley  Fall  stone  contained 
in  old  Westminster  Bridge,  which  had  been  pulled  down. 
In  this  case,  though  elaborately  argued,  no  objection  seems 
to  have  been  taken  to  the  jurisdiction. 

§  00.  There  is  a  dictum  of  Lord  Westbury  in  the  House 
^of  Lords  which  puts  the  jurisdiction  as  regards  chattels,  as 
if  extending  to  every  case  where  the  contract  relates  to 
specific  property.  "A  contract  for  the  sale  of  goods,"  said 
his  lordship, (o)  "as,  for  examj^le,  of  500  chests  of  tea  is 
not  a  contract  which  would  be  specifically  performed,  be- 
cause it  does  not  relate  to  any  chests  of  tea  in  particular ; 
but  a  contract  to  sell  500  chests  of  the  particular  kind  of 
tea  which  is  now  in  my  warehouse  in  Gloucester  is  a  con- 
tract relating  to  specific  property,  and  which  would  be 
specifically  performed.  The  buyer  may  maintain  a  suit  in 
equity  for  the  delivery  of  a  specific  chattel  when  it  is  the 
subject  of  a  contract,  and  for  an  injunction  (if  necessary)  to 
restrain  the  seller  from  delivering  it  to  any  other  person." 
It  n)ay  be  doubted  whether  this  dictum  does  not  express  a 
more  complete  system  of  jurisprudence  than  that  which  we 
possess,  and  whether  the  records  of  the  court  of  chancery 
contained  many  bills  for  the  specific  performance  of  con- 
tracts relating  to  specific  chattels  of  a  mercantile  value  like 
tea.(^) 

(o)  In  Holroydv.  Marshall,  10  H.  L.C.,209,  Cranworth  in  Hoare  v.  Dresser,  7  H.  L  C, 

;'x  r.       ■,      „  317-3;  Fothergill  v.  Rowland,  L.  R.  17  Eq., 

(p)  Consider  Heathcote  v.  North  Stafford-  132. 
shire  Railway  Co.,  3  Mae.  &  G.,  112 ;  per  Lord 

equally  cogent,  or  more  so  than  those  applicable  to  land.  With  respect  to 
other  chattel  propert}-,  justice  may  be  done  at  law  by  damages  for  non-perform- 
ance, and  therefore  eqmty  will  not  interpose;  but  for  a  faithful  or  family  slave, 
endeared  by  a  long  course  of  service  or  early  association,  no  damages  can  com- 
pensate; for  there  is  no  standard  by  which  the  price  of  affection  can  be  ad- 
]usted,  and  no  scale  to  graduate  the  feelings  of  the  heart  "  "All  the  principles," 
said  Henderson,  J.,  m  the  same  case,  "which  induce  a  court  of  equity  to  com- 
pel the  specific  execution  of  a  contract  for  the  sale  of  lands,  or  some  favorite  or 
personal  chattel,  apply  with  equal,  if  not  stronger  force,  to  the  case  of  slaves." 
in  y  ir^inia  and  Tennessee,  the  rule  is  much,  if  not  quite,  the  same  as  in  Mis- 
sissippi In  Summers  v.  Bean,  13  Gratt.,  404,  it  is  said  that  the  specific  de- 
livery 01  Slaves  will  be  decreed  regardless  of  their  possessing  or  not  possessing 
peculiar  qualities.  In  the  latter  state  it  was  held,  in  Loftin  v.  Espy,  4  Yerg.! 
^MifT  ^.  "^'^"g.^-  as  a  general  rule,  where  there  is  an  adequate  remedy  at  law, 
Tn  trLT  1  ^  •1°^^'^®7?'  y^*  ^^^'■^  ^«  a°  exception  in  regard  to  slave  property. 
D.ran7li  r^  -}  7^^^^  ^^^^'  ^^^^  ^  Specific  performance  of  slaves  will  be 
rrPtirfn  i^  .r  "f  "^  upon  the  same  grounds  as  other  chattels;  though  the  dis- 
cretion in  the  chancellor  is  very  broad.     Caldwell  v.  Myers,  Hardin,  551. 


EXTENT  OF  THE  JURISDICTION.  33 

§61.  It  does  not  appear  to  follow,  from  the  authorities 
referred  to  or  from  principle,  that  the  vendor  of  a  chattel 
can  maintain  an  action  for  specific  performance  in  all  cases 
where  a  i)urchaser  of  the  same  chattel  could  do  so. 

It  also  appears  that  if  the  chattel  be  of  a  peculiar  value, 
but  by  contract  between  the  parties  a  price  has  been  put 
upon  the  chattel,  that  circumstance  has  been  treated  as  pre- 
cluding the  jurisdiction,  for  it  is  an  admission  that  by  a 
money  i)ayment  full  relief  can  be  had.(«2) 

§  02.  Hitherto  unique  chattels  have  been  spoken  of  ;  but 
it  appears  that  such  jurisdiction  as  the  court  exercises  in 
the  case  of  unique  chattels  it  may  also  exercise  in  the  case 
of  chattels  which,  though  not  unique,  possess  a  special  and 
peculiar  value  to  the  plaintiff.  Thus  in  North  v.  The  Great 
Northern  Railway  Co.(r)  the  court  upheld  its  jurisdiction 
to  interfere  to  prevent  the  sale  of  certain  wagons  belonging 
to  the  plaintiff,  which  had  been  used  by  the  plaintiff  in  his 
business  of  a  colliery  owner,  and  which  the  defendants 
asserted  that  they  had  a  right  to  detain  and  sell.  "Where 
specific  things,"  said  Stuart,  Y.  C.,{s)  ''necessary  for  con- 
ducting a  particular  business  are  in  the  possession  of  per- 
sons who  claim  a  lien  upon  them,  and  threaten  an  imme- 
diate sale,  this  court  has  undoubted  jurisdiction  to  interfere 
by  injunction  and  i^revent  irreparable  injury  to  the  debtor 
by  giving  him  an  opportunity  of  redeeming  assets.'' 

§  63.  So,  too,  there  is  the  high  authority  of  Lord  Hard- 
wicke  for  suggesting  that  si^ecific  i^erformance  might  be 
maintained  by  a  shipbuilder  if  he  were  to  contract  with  a 
landowner  for  the  supply  of  timber  from  an  adjoining  estate, 
the  shipbuilder  being  under  contract  to  complete  a  ship  by 
a  given  time,  for  w^liich  the  su^DiDly  of  such  timber  by  the 
defendant  was  essential.  But  this  will  not  be  extended  to 
mere  questions  of  convenience,  as  the  supply  of  coal  from 
an  adjoining  colliery,  when  plenty  of  other  coal  can  be  pro- 
.  cured  in  the  neighborhood  ;(/)  at  any  rate  it  is  believed  that 
there  is  no  reported  case  in  which  such  a  proceeding  has 
actually  been  maintained. 

§  64.  Cases  might  probably  arise  in  which  the  court  would 

(q)  Do-svling  V.  Betjemanu,  2  J.  &  H.,  544.  ter,  3  Atk.,  383,  compared  with  Pollftrd  v. 

(?•)  2  Giff.,  G4.  Clayton,  1  K.  &  J.,  462,  and  cf.  Fothergill  v. 

(«)  Page  69.  Kowland,  L.  R.  17  Eq.,  132. 
(<)  Per  Lord  Hardwicke  in  Buxton  v.  Lis- 

3 


/ 


34  FRY  ON  SPECIFIC  PEKFORMANCE  OF  CONTRACTS. 

interfere  in  respect  of  chattels  connected  with  the  enjoyment 
of  an  estate,  where  but  for  such  connection  it  would  not 
exercise  jurisdiction.  In  one  case  Lord  Eldon  made  an 
order  specifically  to  restore  to  a  tenant  the  stock  on  a  farm, 
which  had  been  seized  by  the  landlord  under  a  distress  and 
bill  of  sale ;  his  lordship  holding  that,  under  the  circum- 
stances of  that  case,  there  was  an  entire  contract  by  which 
the  landlord  agreed  to  let  the  tenant  have  both  the  estate 
and  the  chattels,  the  enjoyment  of  the  chattels  being  requi- 
site for  the  enjoyment  of  the  estate. (m) 

§  65.  This  appears  to  have  been  one  ground  on  which  the 
court  of  chancery  anciently  enforced  contracts  to  build  in 
certain  cases  ;  as  where  the  father  entered  into  articles  with 
a  builder,  and  died  before  the  execution  of  the  contract,  the 
heir  was  allowed  to  sue  the  personal  representative  of  his 
father  and  the  builder,  the  contract  savoring  of  the  realty.  («) 
So,  in  another  case,  a  contract  to  build  was  specifically  en- 
forced against  a  tenant  who,  having  undertaken  to  rebuild 
the  farm-house,  had  done  so  on  his  own  soil  instead  of  his 
landlord' s.(w)  And  we  shall  hereafter  (a?)  see  that  contracts 
by  railway  companies  for  the  execution  of  works  on  the 
land  of  the  plaintifl:  stand  on  a  different  footing  from  ordi- 
nary building  contracts. 

§  66.  From  specific  i3erformance  in  resj)ect  of  chattels 
must  be  discriminated  the  cases  where  a  trust  has  been  con- 
stituted in  respect  of  such  property ;  for  the  nature  of  the 
subject-matter  is  no  obstacle  to  the  interference  of  the  court 
to  compel  execution  of  the  trust,  wdiether  it  be  one  consti- 
tuted by  direct  declaration,  or  a  constructive  trust  arising 
from  the  act  of  the  parties.  (^)'     The  court  will  accordingly 

(M)  Xutbrown  v.  Thornton,  10  Ves.,  159.  (x)  Infra,  §  61  et  seq. 

(r)  Holt  V.  Holt,  2  Vern.,  322;   per  Lord  (y)  Wood  v.  Rowcliflfe,  3  Ha.,  304;  S.  C.,2 

Hardwlck  in  Rook  v.  Warth,  1  Ves.  Sen.,  461.  Ph.,  382;  Pooley  v.  Budd,  14  Beav.,  34. 
(w)  Pembroke  v.  Thorpe,  3  Sw.,  437,  n. 

'  The  exercise  of  equity  jurisdiction  does  not  proceed  upon  any  distinction 
between  real  estate  and  personal  estate,  but  upon  the  ground  that  damages  at 
law  may  not  afford  a  complete  remedy.  Thus  courts  of  equity  well  clecree 
performance  of  a  contract  for  land,  not  because  of  the  particular  nature  of  the 
land,  but  because  the  damages  at  law,  which  must  be  calculated  upon  the  gen- 
eral value  of  the  land,  may  not  be  a  complete  remedy  to  the  purchaser,  to  whom 
the  land  purchased  may  have  a  peculiar  and  special  value.  So  courts  of  equity 
will  not  generally  decree  performance  of  a  contract  for  the  sale  of  stock  or 
goods;  not  because  of  their  personal  nature,  but  because  the  damages  at  law, 
calculated  upon  the  market  price  of  the  stock  or  goods,  are  as  complete  a 
remedy  for  the  purchase,  as  the  delivery  of  the  stock  or  goods  contracted  for; 


EXTENT  OF  THE  JURISDICTION.  35 

restrain  improper  dealings  by  an  agent  with  chattels,  though 
they  may  be  of  no  peculiar  or  intrinsic  value,  (z) 

§  67.  Lord  Hardwicke  seems  to  have  entertained  the  view- 
that  where  the  contract  was  for  the  delivery  of  chattels  by 
installment  and  for  payment  in  a  like  method,  the  court 
would  entertain  jurisdiction. 

In  a  case  cited  by  his  lordship,  articles  for  the  sale  of 
eight  hundred  tons  of  iron,  to  be  paid  for  by  installments,  at 
periods  running  through  some  years,  were  specifically  en- 
forced, (a)  The  case  appears  to  have  been,  as  already  stated, 
approved  by  his  lordship,  but  was  doubted  by  Lord  Hath- 
erley  (when  V.  C),  who  remarked  on  the  absence  of  any 
case  for  the  sale  of  mere  goods  being  supported  on  the 
ground  of  their  being  to  be  delivered  by  installments.  (Z>) 
Mr.  Austin,  too,  has  expressed  his  inability  to  understand 
on  what  principle  the  case  proceeded,  (c)  and  a  like  inability 
is  here  confessed. 

4.  Where  tlie  contract  is  such  as  the  court  cannot  loerform. 

§  68.  Where  the  contract  is,  from  its  nature,  such  that 
the  court  cannot  enforce  its  performance,  {d)  it  is  necessarily 
no  subject  of  its  jurisdiction  in  that  respect. (e) 

§  69.  On  this  principle  the  court  will  not  prohibit  the 
making  of  a  secret  medicine ;  for,  if  it  be  secret,  then  the 
court  cannot  tell  whether  it  has  been  infringed  or  no ;(/) 
nor,  for  the  same  reason,  will  it  direct  the  si^ecific  perform- 
ance of  covenants  in  a  farming  lease,  for  "how,"  said  Lord 
Northington,    "can  a  master    judge    of    repairs    in  hus- 

(a)  Wood  V.  Rowcliffe,  %Cbi  mpra.  («)  Consider  Hope  v.  Gibbs,  26  W.  R.,  72; 

(«)  Taylor  v.  Neville,  cited   3  Atk..  384.  De  Mattes  v.  Gibson,  4  De  G.  &  J.,  276,  299. 

Distinguish  Nives  v.  Xives,  15  Gh.  D.,  649.  (/)  Newberry  v.  James,  2  Mer.,  446;  WIl- 

(6)  Pollard  V.  Clayton,  1  K.  &  J.,  462.  liamsv.  Williams,  3 Id.,  157;  and  see  the  other 

(c)  Jurisprudence,  808.  cases  cited  in  the  note  to  §  1516,  infra. 

{d)  A.8  to  uncertainty  in  contracts  see  Part 
III,  ch.  4,  Infra. 

inasmuch  as  with  the  damages  he  may  ordinarily  purchase  the  same  quantity 
of  the  like  stock  or  goods.  '  Story's  Eq.  Jur.,  §  717.  It  was  upon  this  distinc- 
tion that  the  decision  in  Clark  v.  Flint,  22  Pick.,  231,  is  based.  It  was  there 
held,  that,  where  the  owner  of  a  brig  had  contracted,  in  writing,  for  a  valuable 
consideration,  to  hold  the  vessel  in  trust  for  another,  and  subject  to  his  order 
and  disposition,  and  then  sold  her  to  another  person,  with  notice  of  the  con- 
tract, specific  performance  might  be  enforced,  in  case  of  the  insolvency  of  the 
original  contractor,  since  a  judgment  at  law  against  an  insolvent  person  would 
not  be  an  adequate  remedy.  It  is  a  point  too  well  settled  to  admit  of  much 
doubt,  that  where  a  trust  has  been  created  in  relation  to  particular  chattels,  by 
contract,  a  bill  in  equity  will  lie  to  enforce  the  trust  and  have  a  transfer  of  the 
property.  Cowles  v.  Whitman,  10  Conn.,  121,  which  was  a  case  of  a  trust  in 
bank  shares.     See  the  dictum  in  Ferguson  v.  Paschall,  11  Miss.,  267. 


/ 


J 


36  FRY  OX  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

bandry?"((7)'  Nor  will  it  enforce  against  a  life  assurance 
society  a  contract  to  reduce  a  premium  if  satisfied  with  the 
removal  of  the  cause  for  charging  an  extra  premium,  for  it 
is  the  society  and  not  the  court  which  is  to  be  satisfied  ;(7i) 
nor  will  it  order  the  performance  of  continuous  acts.(?:) 
And  the  fact  that  the  parties  cannot  be  put  in  the  condition 
for  which  they  stipulated  when  the  contract  was  entered 
into,  obviously  disables  the  court  from  adjudging  specific 
performance,  {j) 

§  70.  And  so,  too,  the  court  will  not  interfere  to  enforce 
a  contract  by  means  of  injunction,  where  the  acts  com- 
plained of  as  breaches  are  frequent,  and  the  court  could 
not  ascertain  whether  there  has,  in  each  case,  been  a  breach 
without  an  action  ;  as  in  the  case  of  a  covenant  not  to  sell 
water  from  a  certain  well  to  the  plaintiff's  injury. (A') 

§  71.  The  incapacity  of  the  court  to  execute  the  contract 
limits  its  jurisdiction  in  cases  relating  to  the  sale  of  the 
goodwill  of  a  business.'  For  where  the  contract  has  respect 
to  a  goodwill  alone,  unconnected  with  business  premises, 
the  court  refuses  specific  performance  by  reason  of  the 
uncertainty  of  the  subject  matter,  and  the  consequent  in- 
capacity of  the  court  to  give  specific  directions  as  to  what 
is  to  be  done  to  transfer  it.(Z)    But  where  the  goodwill  is 

((7)  Rayner  v.  Stone,  2  Eden,  128.  Cf.  Bern-  (j)  Re  Mercantile  and  Exchange  Bank,  L. 

ard  V  Meara,  12  Ir  Ch.  R.,  389,  396.  B.  12  Eq.,  26S,  276. 

(h)  Manby  v.  Gresham  Life  Assurance  So-  Qc)  Collins  v.  Plumb,  16  Ves.,454.  See, also, 

ciety,  29  Beav  ,  439  City  of  London  v.  Xash,  3  Atb  ,  512.  515. 

(i)  Blackett  v.   Bates.  L.  R.   1  Ch.,  117;  (Z)  Baxter  v.  Conolly.lJ.  &  W.,. 576;  Bozon 

Powell  Uuffryn  Steam  Coal  Co.  v.  Taff  Vale  v    Farlow,  1  Mer.,  459;    Coslake  v.  Till,  1 

Railway  Co.,  L.  R.  9  Ch.,  331.  Russ.,  376. 

^  Under  tbi.s  head  may  be  ranked  contracts  to  do  purelj'  personal  acts.  It 
may  be  laid  down  that  equity  never  enforces  these  contracts  unless  they  have 
some  reference  to  property  of  some  kind,  or  a  partnership  of  some  nature.  In 
England,  equity  will  interfere  negatively,  that  is,  by  injunction.  Although  the 
court  could  not  carry  out  the  jjosiiive  part  of  the  agreement;  which,  in  Lumley 
V.  Wagner,  1  De  G.  M.  &  G.,  was  an  engagement  to  sing  at  a  theatre;  the  court 
preventing  the  singer  from  performing  elsewhere.  But  in  New  York  at  least 
there  are  no  cases  of  this  kind  where  the  court  has  interfered  either  actively  or 
negatively.  Haight  v.  Badgley,  15  Barb.  Sup.  Ct.,  501;  Hamblin  v.  Dunneford, 
2  Edw.  Ch.,  532;  De  Rivafinoli  v.  Corsetti,  4  Paige,  261;  Sanquirico  v.  Bene- 
detti,  1  Barb.  Sup.  Ct.,  315.  Where  property  is  concerned,  the  rule  is  different. 
Stuyvesant  v.  The  Mayor  of  New  York,  11  Paige,  414.  In  regard  to  contracts 
relating  to  partnerships  the  English  rule,  as  established  in  Morris  v.  Coleman, 
18  Ves.,  437;  Clark  v.  Price,  2  Wilson,  157,  and  Kemble  v.  Kean,  6  Sim.,  333, 
has  never  been  controverted. 

'  Equity  will  interpose  to  prevent  a  party  from  setting  up  a  business  or  pro- 
fession in  opposition  to  his  agreement,  notwithstanding  he  has  agreed  not  to  do 
so  under  a  penalty,  and  has  paid  the  penaltv.  Roper  v.  Upton,  125  Mass.,  258; 
Dooley  V.  Watson,  1  Gray,  414;  Hardy  v.  Martin,  1  Cox,  26. 


\ 


EXTENT  OF  THE  JUElSDICTIOlSr.  37 

entirely  or  mainly  annexed  to  the  premises,  and  the  con- 
tract is  for  the  sale  of  the  premises  and  goodwill,  the  con- 
tract may  be  enforced.  (7?z)  For  in  that  case  the  goodwill  is 
merely  the  advantage  attached  to  the  possession  of  the 
honse  or  other  x)lace  of  business, (7^) — "the  probability,"  to 
use  the  words  of  Lord  Eldon,  (o)  ' '  that  the  old  customers 
will  resort  to  the  old  place" — together  with  the  right  which 
arises  to  the  x)urchaser  to  restrain  the  vendor  from  setting 
up  anew,  or  continuing,  the  identical  business  he  has  con- 
tracted to  sell,  but  w^ithout  any  right,  independently  of 
stipulation,  to  prevent  the  vendor's  setting  up  a  similar 
business.  (^)  In  the  case  of  contracts  for  the  sale  of  the 
business  of  an  attorney,  the  legality  of  stipulations  com- 
prised in  them,  for  the  purpose  of  giving  to  the  party  to 
carry  on  business  the  advantage  of  the  name  or  of  the 
recommendation  of  the  party  not  engaged  in  it,  has  been 
questioned  by  the  highest  authorities,  including  Lord  El- 
don;  Grant,  M.  R.,  and  Knight  Bruce,  L.  J.(^)  But  it 
seems  to  be  now  established,  not  only  that  such  transac- 
tions are  legally  valid, (r)  but  that  they  may  be  specifically 
executed,  by  injunction  or  otherwise,  by  the  court.  (5) 

5.  Where  the  performance  of  the  contract  would  he  useless. 

§  7S.  The  court  will  not  enforce  a  contract  which  is  in  its 
nature  revocable  by  the  defendant ;  for  its  interference  in 
such  a  case  would  be  idle,  inasmuch  as  what  it  had  done 
might  be  instantly  undone  by  one  of  the  parties.' 

Thus  w^here  the  registrar  of  a  consistory  cqurt  agreed  to 
grant  a  deputation  of  his  office,  it  was  held  that  such  a 

(OT)  Darbey  v.  Whittaker,  4  Drew.,  134,139,  v.  Baker,  14  id.,  468.    Cf.  Leggott  v.  Barrett, 

140.  15Ch.  D.,306. 

(n)  Chissum  v.  Dewes,  5  Rus8.,29;  Mum-       (q)  Per  Lord  Eldon  In  Candler  v.  Garden, 

mery  V.  Paul,  1  C.  B.,  316,326;  and  see  fur-  Jac,  231;   Bozon    v.   Farlow,  1   Mer.,  459; 

ther,  as  to  the  nature  of  a  goodwill,  Potter  V.  Thornbury  v.   Bevill,  1  Y.  &  C.  C.  C,  584. 

Commissioners  of  Revenue,  10  Ex.,  147;  Alii-  See  GilflUan  v.  Henderson,  2  CI.  &  Fin.,  1. 
eon  V.  Monkwearmouth,  4  El.  &  Bl.,  13.  and       (r)  Bunn  v.  Guy,  4  East.  190. 
Lindley,  Partn.,  884  (3d  ed  ).  (s)  Whittaker  v.  Howe,3  Beav.,383;  Aubln 

(o)  In  Cruttwell  v.  Lye.  17  Ves..  346.  v.  Holt,  2  K.  &  J.,  66. 

(p)  Cruttwell  V.  Lye,  17  Ves.,  335;  Shackle 

^  Thus,  while  equity  will  sustain  a  post  nuptial  voluntary  settlement  in  favor 
of  the  wife,  when  executed,  and  will  specifically. enforce,  as  against  any  other 
person  than  the  party  himself,  an  agreement  to  make  such  a  settlement,  it  will 
refuse  to  execute  such  an  agreement  against  the  party  himself,  because,  until 
executed,  it  is  revocable.     Andrews  v.  Andrews,  28  Ala. ,  432. 


38  FEY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

deputation  was  in  its  nature  revocable,  and,  tlierefore,  could 
not  be  enforced  by  the  court.  (^)' 

§  73.  It  is  on  the  same  principle  that  the  court  generally 
refuses  to  interfere  in  cases  of  contracts  to  enter  into  part- 
nership which  do  not  specify  the  duration  of  the  partnership 
— that  relation,  unless  otherwise  provided,  being  dissoluble 
at  the  will  of  either  party,  {u)  There  is  indeed  some  authority 
to  the  contrary  of  this  proposition,  consisting  of  a  dictum  of 
Lord  Hardwicke's(«)  in  general  terms,  and  two  or  three 
cases  {to)  in  which  specific  performance  of  such  contracts 
seems  to  have  been  enforced,  but  with  regard  to  which  it 
does  not  appear  whether  the  partnershii3s  thus  constituted 
were  for  a  term  or  not ;  and  it  is  indeed  said  that  Lord 
Eldon  was  not  quite  satisfied  with  his  decision  in  the  case 
quoted  as  establishing  the  princii)le.  (a?)' 

§  74.  The  doctrine,  however,  appears  to  be  generally  ac- 
cepted as  that  of  the  court.  Thus  in  a  case  before  Lord 
Romilly,  M.  R.,  the  principle  was  acted  on:  the  defendant 
entered  into  a  contract  with  the  plaintiff  company  to  take  a 
certain  number  of  shares  and  to  execute  the  deed  of  settle- 
ment when  required ;  and  of  this  contract  the  court  refused 
specific  i)erformance,  because  the  defendant  might,  by  the 
rules  of  the  company,  have  ceased  again  to  be  a  j)artner 
within  fourteen  days  after  becoming  such.(?/) 

§  75.  It  is  on  the  same  reasoning  that  the  court  declines 
to  perform  a  contract  to  execute  an  instrument  if  such  cove- 
nants must  be  introduced  into  the  instrument  that  the  party 
resisting  the  performance  may  immediately  take  advantage 

(<)  Wheeler  v.  Trotter,  3  Sw.,  174,  n.    See,  {x)  1  Mad.  Ch.,  411,  n. 

also,  Sturge  v.  Midland  Railway  Co.,  6  W.R  ,  (y)  Sheffield  Gas  Consumers'  Co.  v.  Harri- 

233  (Stuart,  V.  C).  son,  17  Beav.,  294;  cf.  Bluck  v.  Mallalue,  27 

(M)  Hercy  v.  Birch,  9  Ves.,  357.    See  fui--  Id.,  398,  405.    Distinguish  Odessa  Tramways 

ther.  Infra,  §§  S24,  1512  et  seq.,  and  cf.  Firth  Co.  v.  Mendel,  8  Ch.  D.,  235,  and  cf.  Xew 

V.  Ridley,  .33  Beav.,  516,  521.  Brunswick  and  Canada  Railway  Co.,  Limlt- 

(V)  In  Buxton  V.  Lister,  3  Atk.,  385.  ed,  v.  :MuggerIdge,  30  L.  J.   Ch.,  247.    See, 

(w)  Anon.,  2  Ves.  Sen.,  629;  Anon.,  1  Mad.  also,  as  to  contracts  to  form  a  company, 

Ch.,  411,  n.;  Hibbert  v.  Hibbert,  Coll.,  Partn.,  Stocker  v.  Weddcrburn,  3  K.  &  J  ,  393. 
133. 

'  Where  tlie  contract  is  revocable  at  tlie  pleasure  of  the  party  making  it, 
specific  performance  will  not  be  decreed ;  it  would  be  an  idle  exercise  of  the 
power  of  the  court.     Express  Co.  v.  R.  R.  Co.,  9  Otto,  191. 

«  Mea.son  v.  Kaine,  63  Pa.  St.,  335;  Birch  v.  Smith,  29  Mich.,  166.  Where, 
by  the  partnership  agreement  a  party  has  an  interest  in  property,  such  interest 
will  be  secured  to  him.  Somerly  v.  Buntin,  118  Mass  ,  279.  The  terms  of  the 
partnership  must,  however,  have  been  distinctly  settled  for  a  definite  time. 
Wilson  V.  Campbell,  10  111.,  383;  Whittorth  v.  Harris,  40  Miss.,  4S3;  England 
V.  Curling,  8  Beav.,  129. 


EXTEN^T  OF  THE  JURISDICTION.  39 

of  them  to  deprive  the  other  of  all  benefit  under  the  instru- 
ment ;  as,  for  instance,  a  contract  for  a  lease  which  is  to 
contain  a  jDroviso  for  re-entry  on  breach  of  a  covenant,  which 
the  plaintiff  has  already  broken. (2:) 

6.  WJiere  the  court  would  he  unable  to  enforce  its  judgment. 
§  76.  In  some  old  cases  the  court  of  chancery  entertained 
suits  in  respect  of  building  contracts;  and  what  lias  ))Hen 
considered  one  of  the  earliest  traces  of  the  jurisdiction  in 
specific  performance  is  a  dictum  of  Genney,  J.,  in  tlie  8 
Edward  IV,  that  a  promise  to  l)uild  a  house  would  be  spe- 
cifically enforced,  (rt)  Lord  Hardwicke  also  maintained  this 
view  of  the  jurisdiction  of  the  court. (^)  But  it  is  now  clearly 
settled  that,  subject  to  certain  excei)tions,  the  court  will  not 
specifically  enforce  contracts  to  build  or  repair, (c)  both  be- 
cause specific  performance  is  "decreed  only  Avhere  the  party 
wants  the  thing  in  specie  and  cannot  have  it  any  other 
way,'"((^Z)  and  because  such  contracts  are  for  the  most  part 
so  uncertain  that  the  court  would  be  unable  to  enforce  its 
own  judgment. (e)' 

(2)  Per  Grant,  M.  R  ,  in  Jones  v.  Jones,  12  (d)  Ver  Lonl  Kenyon,  M.  R.,  in  Errington 

Ves.,  188.  T.  Aynesly, -2  IJro.  C.  C,  :>13;  S.  C,  2  Dick. 

(a)  See  supra,  §  in.  W^2.    Acconllngly  Lucas  v.  Commerford,  3 

(6)  Buxton  V.  Lister,  3  Atk.,  38.i;  City  of  liro.  C  C,  1G6 

London  v.  Nash,  id  ,  .512;  S.  C  ,  1  Ves.  Sen.,  (c)  Moselv  v  Virjrln,  3  Vps.,  LS4:  cf.  Green- 

12.    See,  also,  Allen  v.  Harding,  2  Eij.  C.  hill  v.  Isle  of  Wight  (X.  J.)  Railway  Co.,  19 

Abr.,  17.  W.  R.,  S45;  Bernard  r.  Meara,  12  Ir.  Ch.  R., 

(c)  Paxton  V.  Newton,  2  Sm.  &  Gif.,  437;  389,397. 
Kay  V.  Johnson,  2  H.  &  M  ,  118;  Wbertley  v. 
Westminister  Brymbo  Coal  Co.,  L.  R  9  Eij., 
538. 

'  Buildiiirj  contract H.']  The  rule  is  uow  well  settled,  that  coutracts  for  build- 
ing will  not  be  specifically  enforced.  Lord  Kenyon  said  in  Erringtouv.  Ayucs- 
ley,  2  Bro.  C.  C,  ;J4:i:  "There  is  no  case  of  a  specific  performance  decreed  of 
an  agreement  to  build  a  house,  because  if  A.  will  not  do  it,  B.  may.  A  specific 
performance  is  only  decreed  where  the  party  wants  the  thing  in  sju-cie  and 
cannot  have  it  in  anv  other  way."  See,  also,  "Wilkinson  v.  Clement.-^,  L  K., 
8  Ch.,  !)G:  City  of  London  v.  Southsate,  38  L.  .J.  C,  141:  Martin  v.  Hallv.  Gl 
Mo.,  196:  Ross  v.  Union  Pacific  R.  R.  Co  ,  1  Woohv..  06.  In  Scotland,  the 
court  will  sometimes  apjroint  a  suitable  person  to  superintend  the  work,  when 
it  orders  specific  performance  of  a  building  contract.  Clark  v.  Glasu'ow  Asso. 
Co.,  1  McQueen.  668. 

Example  of  building  contracts  tcJiich  were  enforced,  and  rult.]  A.  agreed  to 
sell  land  to  B.,  and  to  constiiict  a  road,  allowing  A.  to  use  the  same.  B.  was 
to  erect  a  house  on  the  laud  at  a  definite  price  lleld,  that  such  contract  would 
be  specifically  enforced.  Wells  v.  Maxwell,  32  Beav.,  40S:  alT'd,  9  Jur.  (X.  S.) 
1021.  A  tenant  agreed  to  rebuild  a  farm-house,  but  did  so  upon  his  own  land 
instead  of  upon  his  landlord's.  Held,  that  sjiecific  in-rformance  would  be  de- 
creed. Pembroke  v.  Thorpe,  3  Swanst.,  437,  note.  In  Shorer  v.  Gt.  Western 
R.  R.  Co.,  2  Y.  ic  C.  C  C,  48,  it  was  held,  that  a  railroad  company  having 
agreed  to  do  so,  would  be  compelled  to  construct  and  maintain  an  archway 
under  their  line,  connecting  lands  of  plaintilT  severed  by  the  road.  In  San- 
derson V.  Cockermouth  and  Workinirton  R.   R.  Co.,  11  Beav.,  41)7,  that  the 


40  FRY  ON  SPECIFIC  PERFORMAlSrCE  OF  CONTRACTS. 

§  77.  For  the  first  of  the  reasons  stated,  Grant,  M.  R., 
refused  specific  performance  of  a  covenant  to  make  good  a 
gravel-jDit ;(/)  on  the  ground  of  both  of  these  reasons,  spe- 
cific performance  was  refused  in  a  case  of  a  contract  for  the 
construction  of  a  branch  railway,  which  was  entered  into 
during  the  pendency  of  the  bill  before  Parliament,  and  when 
several  of  the  directors  had  thoughts  of  withdrawing  the 
bill,  and,  as  the  plaintiffs  alleged,  would  have  done  so,  but 
for  the  contract  in  question  \{g)  and  in  other  cases,  specific 
performance  has  been  refused  of  contracts  for  the  working 
of  quarries,  (7^-)  and  coal  mines,  (/)  or  involving  the  perform- 
ance of  continuous  acts  or  duties.  (,y) 

§  78,  In  the  case  of  Brace  v.  Wehnert  {k)  decided  by  Lord 
Romilly,  M.  R.,  in  March,  1858,  the  contract  was  that  A. 
should  grant  a  lease  to  B.  as  soon  as  B.  should  have  built  a 
house  of  the  value  of  £1400,  according  to  a  plan  to  be  sub- 
mitted to  and  approved  by  A.,  and  B.  agreed  to  build  and 
take  the  lease  ;  no  plan  had  been  approved  ;  a  bill  filed  by 
A.  against  B.  was  dismissed,  with  costs.  In  like  manner  a 
contract  by  a  landlord  to  execute  repairs  upon  a  farm  was 
not  enforced.  (Z)' 

(/)  Flint  V.  Brandon,  8  Ves.,  159.  ell  Duflfryn  Steam  Coal  Co.  t.  Taff  Vale  Rail. 

(g)  South  Wales  Railway  Co.  v.  Wythes,  1  wav  Co.,  id  ,  9  Ch  ,  331. 

K.  &  J.,  180;  S.  C.,  5  De  G.  M.  &  G.,  880;  (k)  25  Beav  ,  348     Note  that  this  case  was 

GreenhiU  v.  Isle  of  \\  right  (X.  J.)  Railway  decided  before  the  passing  of  Lord  Cairns' 

Co  ,  19  \V   R.,345.  Act.    Consider  Asylum  for  Female  Orphans 

ih)  Booth  V  Pollard,  4  Y.  &  C  Ex.,  61.  v.  Waterlow,  16  W.  R.,  1102. 

(t)  Pollard  V.  Clayton.  1  K.  &  J  ,  462.  (I)    Norris  v.  Jackson,  IJ.  &  H.,  319. 

ij)  Blackett  v.  Bates,  L.  R.  1  Ch.,  117;  Pow- 

railroad  company  must  construct  such  roads  through  the  land  divided,  as  would 
be  necessary  to  connect  the  several  portions.  A.  agreed,  in  writing,  to  partiailly 
erect  sixteen  houses,  and,  upon  completion,  was  to  receive  a  deed  of  three  of 
the  same.  Having  performed  his  part  of  the  contract,  the  court  deemed  spe- 
cific performance,  that  a  deed  in  fee  simple  should  be  given,  with  a  covenant 
against  incumbrances.  Ellis  v.  Burden,  1  Ala. ,  458.  A  railroad  company  pur- 
chased land,  upon  the  terms  that  they  would  construct  a  road  and  wharf. 
Held,  that  they  must  do  so.  Wilson  v.  Furners  R.  R.  Co  ,  L.  R.,  9  Eq.,  28. 
In  Lytton  v.  Gt.  Northern  R.  R.  Co.,  2  K.  &  J.,  394,  the  road  agreed  with  the 
owner  of  land  to  construct  and  maintain  a  siding — Held,  that  specific  perform- 
ance would  be  enforced.  The  same  rule  was  applied  with  regard  to  building 
and  maintaining  a  station  "in  all  respects  first-class."  Hood  v.  Northeastern 
R.  R.  Co.,  L.  R.,  8  Eq.,  666.  "Where  the  plaintifi  has  a  material  interest  in 
its  execution,  and  the  work  to  be  done  is  clearly  defined,  and  where  he  cannot 
be  adequately  compensated  in  damages,  specific  performance  will  be  decreed. 
Story's  Eq.  Juris.,  §  728;  Mosely  v.  Virgin,  3  Ves.,  184;  Stuyvesant  v.  Mayor 
of  N.  Y.,  11  Paige  Ch.,  414. 

\  Specific  performance  as  to  repairs.'\  With  rare  exceptions,  covenants  tore- 
pair  will  not  be  specifically  decreed,  there  being  an  ample  remedy  at  law.  This 
was  held  in  a  case  where  the  lessor  agreed,  in  his  lease,  to  repair  damages  caused 
by  fire.  Beck  v.  Allison,  56  N.  Y.,  367;  City  of  London  v.  Marsh,  3  Atk  ,  512; 
Lord  Abinger  v.  Ashton,  L.  R.,  17  Eq.,  37C;  Hill  v.  Barcley,  18  Ves.,  59.     In 


EXTENT  OF  THE  JUKISDICTION.  41 

§  79.  But,  since  Lord  Cairns'  Act  (21  and  22  Vict.,  cli.  27), 
it  has  been  held  that  where  the  contract  is  for  the  building 
of  a  house,  and,  also,  for  the  grant  and  acceptance  of  a  lease, 
the  court  can  grant  specific  performahce  of  the  contract  to 
accept  the  lease  and  give  damages  for  the  non-building  of 
the  house.  (??i) 

§  80.  There  are,  as  already  hinted,  exceptional  cases  of 
building  contracts  in  respect  of  which  the  court  will  inter- 
fere. Lord  Rosslyn,  in  a  judgment  which  appears  never  to 
have  been  overruled,  maintained  that  where  a  contract  for 
building  is  in  its  nature  defined,  the  court  might,  without 
much  difficulty,  entertain  a  suit  for  its  performance.  (;i) 
Mr.  Justice  Story  argues  in  suxjport  of  this  view,(c)  and  in 
Cubitt  V.  Smith, (^)  Stuart,  Y,  C,  acted  upon  it.'  It  may 
also  be  added  that  in  Scotland  many  contracts  to  build  are 
sj^ecifically  iierformed,  in  respect  of  Avhich  the  court  would 
decline  jurisdiction  in  England,  the  Scotch  courts  appoint- 
ing some  properly  qualified  person,  under  whose  superin- 
tendence the  work  is  directed  to  be  executed.  (^) 

§  81.  But  whether  the  court  will,  or  will  not,  interfere  to 
enforce  all  such  contracts  when  definite,  it  appears  to  be 
settled  that  it  will  assume  jurisdiction  where  we  have  the 
following  three  circumstances :   first,  that  the  work  to  be 

(m)  Soames  v.  Edge,  Johns.,  669;  Mayor,  (o)  Eq.  Juris.,  §  728. 

etc.,  of  London  v.  Southgate,  17  W.  R  ,  197;  (p)  10  Jur.  (N.  S.),  1123. 

38L.  J.  Ch,  141.                                        '  (9)  Clark   v.  Glasgow  Assurance   Co.,  1 

(n)  Mosely  v.  Virgin,  3  Ves.,  184.  M.  Qu.,  GG8. 

Hughes  V.  Metropolitan  R.  R.  Co.,  ^16  L.  J.  C,  583,  the  lessee  coveuantcd  to 
repair  after  notice;  the  lessor  gave  notice,  and  afterwards  waived  the  default 
of  the  lessee  by  continuing  to  negotiate.  Held,  that  the  court  would  relieve 
against  the  forfeiture.  An  agreement  was  made  that  a  lease  should  be  executed 
containing  a  covenant  to  repair.  Held,  that  specific  performance  of  such  agree- 
ment would  be  decreed,  so  as  to  give  a  remedy  for  not  repairing.  Yolloton  v. 
Seigrett,  2  Abb.  Pr..  121.  See  as  to  improvements  made  by  lessor.  Berry  v. 
Van  Winkle,  2  N.  J.  Eq.,  1  Greene,  269. 

'  There  seems  to  be  considerable  doubt  on  this  point.  See  Story's  Eq.  Jur., 
§§  726,  727.  As  to  the  specific  performance  of  covenants  to  repair,  see  Kayner 
v.  Stone,  2  Eden,  128;  Hill  v.  Barclay,  16  Ves.,  405.  lu  Lucas  v.  Commer- 
ford,  10  Ves.,  235,  the  court  was  of  opinion  that  the  contract,  whi:-h  was  one 
to  build,  should  not  be  enforced.  But  it  appears  that  the  agreement  was,  in 
in  every  respect,  too  uncertain  and  undefined  to  be  made  the  subject  of  a  mas- 
ter's report.  See  note  [2]  to  Lucas  v.  Commerford,  1  Ves.  (Sumner's  ed.) 
Birchett  v.  Boiling,  5  Muu.,  442,  is  an  authority  on  this  point  In  that  case,  a 
contract  to  build  a  tavern,  at  the  joint  risk  and  expense,  and  for  the  joint 
benefit  of  the  parties,  was  decreed  to  be  specifically  performed,  at  the  instance 
of  one  of  them,  who  had  furnished  the  land  to  be  built  upon,  and  performed 
his  part  of  the  agreement,  the  others  objecting,  on  the  ground  that  a  change  of 
circumstances  rendered  the  scheme  unadvisable. 


42  FRY  ON  SPECIFIC  PEKFOEMAKCE  OF  CONTRACTS. 

done  is  defined  ;  secondly,  that  the  plaintiff  has  a  material 
interest  in  its  execution,  which  cannot  adequately  be  com- 
2)ensated  for  by  damages,  and  thirdly,  that  the  defendants 
have  by  the  contract  obtained  from  the  plaintiff  possession 
of  the  land  on  which  the  work  is  to  be  done.  Thus  the  court 
has  in  numerous  cases  (r)  enforced  on  railway  companies 
contracts  to  make  and  maintain  works  for  the  convenience 
of  the  lands  of  the  plaintiff.  It  has  done  this  in  cases  in 
which  the  terms  of  the  contract  have  been  general  and  diffi- 
cult to  execute. 

§  82.  In  one  of  these  cases  a  contract  by  the  company  to 
construct  and  maintain,  upon  land  belonging  to  and  to  be 
provided  by  a  landowner,  a  siding  of  specified  length  along- 
side the  line,  was  held  capable  of  specific  performance ;  and 
the  company  were  not  allowed  to  resist  performance  on  the 
ground  that  the  plaintiff  had,  before  filing  his  bill,  entered 
into  a  negotiation  (which  failed)  for  a  money  compensa- 
tion. (5) 

§  83.  In  another  case  the  plaintiff  had  sold  lands  to  the 
defendants,  a  municipal  corporation,  who  by  the  deed  of 
sale  covenanted  forthwith  to  make  a  road  and  erect  a 
market-house  on  the  land.  They  entered  and  made  the 
road,  but  neglected  to  build  the  market-house.  Wigram, 
V.  C,  observed  that  the  defendants  having  had  the  benefit 
of  the  contract  in  sxiecie,  the  court  would  go  any  length 
that  it  could  to  compel  them  to  perform  their  contract  in 
specie.  (^) 

§  84.  In  this  case,  as  in  the  railway  cases  previously 
quoted,  the  plaintiff  having  parted  with  the  land,  had  no 
opjDortunity  of  doing  the  work  which  the  defendants  had 
contracted  to  do,  and  so  ascertaining  the  amount  of  damages 
sustained  by  their  non-j^erformance ;  (w)  but  though  loart- 
performance  has  to  this  extent  been  held  important,  it  must 
be  borne  in  mind  that  it  will  in  no  case  enable  the  court  to 

(r)  Storer  v.  Great  Western  Railway  Co.,  2  and  Banbury  Junction  Railway  Co.,  L.  R.  9 

Y.  &  C.  C.  C,  48;  >aunder80n   v.  Cocker-  Ch  ,279. 

mouth   and    Workington    Railway    Co.,    11  (si  Greene  v.  West  Cheshire  Railway  Co., 

Beav.,  497;  Lord  Darnley  v.  Loudon.  Chat-  L.  K.  13  Eq  ,  44. 

ham  and  Dover  Railway  Co.,  1  De  G.  J.  &  (0  Price  v.  Corporation  of  Penzance,  4  Ha., 

S.,  2'i4;  3  id.,  24;  L.  R.  2  H.  L.  43;  Sir  E.  P..  506.    See,  also,  Pembroke  v.  Thorpe,  3  Sw., 

Lytton  V.  Great  Northern  Railway  Co.,  2  K.  437,  n.;  Oxford  v  Provand,  L.  R.  2  P.  C.,135. 

■«&  J., 394;  Wilson  v.  Furness  Railway  Co.,L.  {u)  Per  Lord  Hatherley  (then  Wood,  V.C.) 

H.  9  Eq.,28;  Ilood  v.  Nortti  Eastern  Railway  in  South  Wales  Railway  Co.  v.  Wythes,  1  K. 

Co.,id.,5Ch.,52.i;  cf.  Wilson  v.  Northampton  &J.,200. 


EXTENT  OF  THE  JURISDICTION.  43 

intervene  where  it  has  no  jurisdiction  in  the  original  subject- 
matter  of  the  contract.  (?;)' 

§  8»5.  Where  the  act  alleged  as  part-performance  is  one 
proper  to  be  brought  before  a  jury,  and  can  be  answered  in 
damages,  non-performance  of  the  rest  of  the  contract  does 
not  constitute  that  fraud  which  is  the  origin  of  the  court's 
jurisdiction  in  cases  of  part-performance  in  this  respect,  as 
well  as  when  treated  as  an  exception  to  the  Statute  of 
Frauds.  (70) 

§  86.  In  one  case  Lord  Eldon,  though  expressing  a  diffi- 
culty in  decreeing  repairs"  to  be  done  affirmatively,  yet  1)\' 
means  of  an  injunction  in  fact  granted  perfonnance  of  a  cove- 
nant to  keep  a  canal  and  its  stopgates  in  repair  for  the 
benefit  of  the  lessee  of  a  mill  interested  in  them.(a^) 

7.  W?ie7'e  the  enforced  performance  of  the  contract  icould 
he  worse  than  its  non-performance. 

§  87.  The  relation  established  by  the  contract  of  hiring 
and  service  (?/)  is  of  so  personal  and  confidential  a  character 
that  it  is  evident  that  such  contracts  cannot  be  specifically' 
enforced  by  the  court  against  an  unwilling  party  with  any 
hope  of  ultimate  and  real  success ;  and  accordingly  the  court 
now  refuses  to  entertain  jurisdiction  in  regard  to  them.(i') 

§  88.  In  former  times  this  seems  to  have  been  otherwise. 
In  a  case  decided  by  Lord  Cowper  and  the  House  of  Lords, 
there  was  a  contract  by  which  a  skilled  person  had  bound 
Iiimself  to  serve  during  his  life  as  manager  and  overseer  to 
a  company  engaged  in  the  manufacture  of  brass,  and  the 
company  had  agreed  to  pay  him  a  certain  salary  and  3*.  Qd. 

{V)  Kirk  V.  Bromley  Union,  -1  Ph.,G4n,  618;  57;  M'hite  v.  Boby,  -If,  W.  R..  133.    In  Riijby 

Crampton  v.  Vaina  Railway  Co.,  L.  R  7  Ch.,  v.  Connol,  14  Ch.  L).,  4S7.  the  opinion  ai'pears 

562.  to  have  been  intimated  by  Jessel,  M.  K.,  that 

(w')  South  Wales  Railway  Co.  v.  Wythes,  I  the  fdCt  of  there  being  no  property,  tlie  ri^ht 

K   &  J.,  186;  and  see  Inlra,  §  n6-2  et  seq.  to  which  is  taken  away  from  the  persi>ii  eom- 

(.r)  Lane  v.  Newdijrate,  10  Ves.,  192  plaining,  lies  at  the  root  of  the  court's  non- 

(j/)  See  per  Jessel,  M.  R.,  in  Rigby  v.  Con-  Interference  in  respect  of  contracts  strictly 

nol,  14  Ch.  D.,  487.  personal  in  their  nature. 

(s)  See  Ghillis  v.  McGhec,  13  Ir.  Ch.  R.,  48, 

'  In  a  very  similar  case — where  the  city  of  New  Haven  had  agreed  to  Iniy  of 
the  phiintilT  certain  lands,  and  as  much  of  the  water  of  Mill  river  as  shoulti  l)e 
necessary  to  supply  thai  city  with  pure  water,  for  the  consideration  of  AoO.OOO, 
and  of  tlie  covenant  to  construct  a  costly  dam,  and  a  canal  to  convey,  for  the 
plaintiff's  use.  the  surplus  water  of  said  river — specific  jierforinance  was  re- 
fused, upon  the  ground  that  he  had  never  parted  with  the  possession  of  the 
property,  and,  conse(iuently,  that  he  had  the  means  of  complete  redress  at  law. 
Whitney  v.  New  Haven,  255  Couu.  R.,  G24. 


44  FRY  OX  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

for  every  liundred- weight  of  brass  wire  made  by  him  or  any 
other  person  for  them  during  his  life  ;  on  a  bill  by  the  man- 
ager, Lord  Cowper  decreed  the  payments  according  to  the 
articles  for  past  services,  and  specific  performance  of  them 
for  the  future,  by  the  plaintiff  again  repairing  to  the  works 
and  acting  according  to  the  articles,  if  the  defendants  should 
require  the  same.  The  appeal  from  this  decree  to  the  House 
of  Lords  was  by  the  plaintiff  on  a  x^oint  of  the  construction 
of  the  contract  as  to  the  3s.  6d.  per  cwt.,  which  resulted  in 
a  modification  of  the  decree  according  to  his  contention,  (a) 
And  in  another  case  Lord  Hardwicke  specifically  enforced  a 
contract  by  the  East  India  Com^Dany  to  employ  a  man  as  a 
packer.  (^) 

§  89.  But  the  difficulty  of  enforcing  such  contracts  in 
si^ecie  is  now  admitted  by  the  court.  Thus,  in  a  case  where 
the  plaintiffs  had  contracted  for  a  specified  sum  to  work  the 
line  of  a  railway  company  and  to  keep  the  engines  and  rol- 
ling stock  in  repair,  the  court,  considering  this  to  be  a  con- 
tract for  services,  refused  to  enforce  it.(c)  "  We  are  asked," 
said  Knight  Bruce,  L.  J.,{d)  "to  compel  one  person  to  em- 
ploy against  his  will  another  as  his  confidential  servant,  for 
duties  with  respect  to  the  due  performance  of  which  the 
utmost  confidence  is  required.  Let  him  be  one  of  the  best 
and  most  competent  persons  that  ever  lived,  still,  if  the  two 
do  not  agree,  and  good  peoi^le  do  not  always  agree,  enor- 
mous mischief  may  be  done." 

§  90.  So  in  an  earlier  case  a  grant  having  relation  to  an 
office  of  a  personal  and  confidential  character,  was  held  to 
be  incapable  of  being  specifically  enforced  ;(e)  in  another 
instance,  where  an  indenture  was  li^ld  to  constitute  the  rela- 
tion of  master  and  servant,  and  not  of  j^artner.  Lord  Truro 
dissolved  an  injunction  which  had  been  previously  granted, 
restraining  the  defendant  from  excluding  the  plaintiff  from 
the  management  of  the  business  ;  (/)  and  in  another  case, 
where  a  contract  by  the  plaintiff  to  employ  the  defendant 
as  manager  of  a  business  formed  part  of  a  contract  by  which 

(a)  Ball  V.  Coggs,  1  Bro.  P.  C  ,  140.    This  too,  Home  v.  London  and  North  Western 

case  involves  the  validity  of  contracts  of  ser-  Railway  Co.,  10  W.  R.,  170. 

vice  lor  life;  as  to  which  see,  also,  Wallis  v.  (d)  Page  926. 

Day,  2  M.  &  \V.,  273.  («)  Pickering  v.  Bishop  of  Ely,  2  Y.  &  C.  C. 

(6)  East  India  Co  v.  Vincent,  2  Atk.,  83.  C.,  249. 

(c)  Jonnson  V.  ^hrew8bu^y  and  Birming-  (/;  Stocker  v.  Brocklebank,  3  Mac.  &  G., 

ham  Railway  Co.,  3  DeG.  M.  &G.  914.    See,  250;  cf  Webb  v.  England,  7  Jur.  (N.  S.),  153; 

9  W.R.,  183;  SOL.  J.  Ch., 222. 


EXTENT  OF  THE  JURISDICTION.  45 

the  defendant  agreed  to  grant  to  the  plaintiff  a  lease  of  a 
wharf,  specific  performance  was  refused  on  the  ground  of 
want  of  mutuality.  (<7) 

§  91.  In  like  manner  the  court  cannot  enforce  contracts 
of  agency  ;  as  has  been  illustrated  in  the  cases  of  contracts 
to  employ  a  shipping-broker  (Z*^)  and  auctioneer.  (/)' 

8.  W/iere  the  contract  is  voluntary. 
§  92.  The  court  will  never  lend  its  assistance  to  enforce 
the  specific  execution  of  ccyi tracts  which  are  voluntary,  or 
where  no  consideration  emanates  from  the  party  seeking 
performance,  (ji')  even  though  they  may  have  the  legal  con- 
sideration of  a  seal ;   and  this  principle  applies,  whether 

ig)  Ogilen  v.  Fossick,  4  De  G.  F.  &  J.,  42.1 ;  ton  v.  Lees,  1  Juv.  (X  S.l.  S>y2  (Stuart,  V.  C); 

cf   Stocker  v.  WeiMerburn,  3  K.  &  J.,  393;  Ord  v.  Johnston,  ia.lOG.J;  4  \V.  H.,  37,  1«1.; 

Firth  V.  Ridley,  33  Beav.,  516.  Walrond  v.  Walroml,  Johns.,  IS;  Kennedy 

(/t)  Brett  V.  East  India  and  London  Ship-  v.   May,  11  W.  R  ,  353.    bee,  too,  per  Lord 

ping  Co.,  Limited,  2  H.  &  M  ,  404  Eldon  in  Penn  v.  Lord  B..ltimore,  1  Ves.  Sen., 

(i)  Chinnock  V.  Sainsbiirv,30  L.  J.  Ch.,  400.  4.'i0,  and  distinguisli  Cheale  v.  Kenward,  27 

0)  Groves  v.  Groves,  3  Y .  &  J.,  163;  Hough-  L.  J.  Ch.,  784. 

'  Si^ecific  performance  of  contracts  for  pergonal  service.'}  Contracts  of  liiring 
and  service,  uotwithstandini;  their  difficulty  of  being  carried  out,  were  form- 
erly specificalh'  enforced  by  courts  of  equity.  Ea'st  lud.  Co.  v.  Vincent,  2 
Atk.,  8;J:  Ball  V.  Coggs,  1  Bro.  P.  C,  140.  The  rule,  however,  appears  now 
to  be  well  settled,  that  specific  performance  of  a  contract  involving  persqnal 
service,  special  ability  or  confidence,  will  not  be  decreed:  and  that  a  party  will 
not  be  enjoined  from  terminating  such  a  contract,  the  following  are  examples: 
Tlie  court  refused  to  decree  specific  performance;  to  report  law  cases.  Clark 
V.  Price,  2  J.  Wills.,  157.  To  furnish  drawings  for  maps.  Baldwin  v.  Useful 
Knowledge  Soc.,.9  Lim.,  393.  To  perform  at  a  theatre.  Lumlev  v.  Wagner, 
1  De  G.  M  &  G.,  G04:  Fredericks  v.  IVIyer,  13  How.  Pr.,  566;  Butler  v.  Galetti, 
21  id.,  465;  Montague  v.  Flocktou,  L.  R  ,  16  Eq.,  189.  In  Pennsylvania,  it 
has  been  very  lately  held,  that  a  court  of  equity  would  not  enforce  the  pensoual 
services  of  aii  actor,  and  would  not  enjoin  hfm  from  lu'rforming  at  another 
theatre.  Ford  v.  Germon,  6  Phila.,  6.  To  do  work  as  an  ai^prentice.  or  to  in- 
struct as  a  master.  Webb  v.  Endand,  29  Beav.,  44.  To  work  quarries  or 
coal  mines.  Booth  v.  Pollard,  4  Y.  6c  C.  Ex.,  61.  Pollard  v.  Clayton,  I.  K.  & 
J.,  462.  To  work  a  line  of  railroad,  and  keep  the  rolling  stock  iu  repair. 
Johnson  v.  Shrewsbury,  etc.,  R.  R.  Co.,  3  De  G.  M.  <k  G.,  914. 

Where  the  af/reemeni  is  incapable  of  being  enforced.]  Specific  performance  will 
not  be  decreed,  where  the  nature  of  the  contract  is  such  that  it  is  out  of  the 
power  of  the  court  to  enforce  it;  e.g.,  it  will  not  direct  the  conduct  of  the 
member  of  a  firm  in  matters  requirinc;  his  personal  skill  and  judgment  in 
the  business  of  the  firm.  Buck  v.  Sniith,  29  Mich.,  160;  Roberts  v.  Kclsey. 
38  id.,  602.  Land  was  to  be  sold,  provided  the  purchase  money  should  be  paid 
as  misrht  be  agreed  upon  between  the  parties.  Held,  that  eiiuity  could  not 
compel  the  parties  to  agree.  Hoff  v.  Shepherd.  58  -Mo.,  242;  see.  also.  Atlanta 
R.R  Co.  V.  Spear,  32  Ga.,  550;  Blanchard  v.  Detroit  R.R.Co.,  31  Mich.,  43;  Cin- 
cinnati R.  R.  Co.  V.  Washburn.  25  Ind.,  25!).  A  court  of  cpiity  may,  as  a 
temi)orary  measure  during  the  j^eudencv  of  a  litiiiation,  operate  a  railroad  by  a 
receiver.  Coe  v.  Columbus  R.  R.  Co.,  10  Ohio  St..  372:  see  Port  Clinton  R.  R. 
Co.  V.  Cleveland  R.  R.  Co.,  13  Ohio  St.,  554;  Richmond  v.  Dulm.iue  K.  U.  Co., 
33  Iowa,  422.  A  defendant  will  not  be  obliired  to  furnish  marble  from  a  quarry. 
Marble  Co.  v.  Ripley,  10  Wall.,  339;  see  Columbia  Water  Power  Co.  v.  Co- 
lumbia, 5  S.  C,  225. 


L 


46  FEY  ON  SPECIFIC  PEKFOKMANCE  OF  CONTRACTS. 

the  contract  insisted  on  be  in  the  form  of  an  executory" 
agreement,  a  covenant,  or  a  settlement. (/t)'     The  peculiar 

(k)  Jeffreys  v.  Jeffreys,  Cr.  &  Ph.,  138;  cf.  Re  King,  14  Ch.  D.,  186.  Consider,  too^ 
Harvey  v.  Andland.  14  Sim.,  531  See  the  Andrews  v.  Salt,  L.  R.  8  Ch.,  6-22,  636,  and 
older  eases  discussed  In  1  Mad.  Ch.,  413,  and    Joyce  v.  Hutton,  12  Ir.  Ch.  R.,  71. 

1  Grover  v.  Grover,  3  Y.  &  J.,  163;  Houghton  v.  Lees.  1  Jur.  N.  T.,  862; 
Ord  V.  Johnson,  id.,  1063;  Jeffreys  v.  Jeffreys,  Cr.  &  Ph.,  138;  Moore  v.  Crof- 
ton,  1  Jones  &  Lat.,  442;  Kennedy  v.  Ware,  1  Pa.  St.,  445;  Merser  v.  Stark, 
Walk.  (Miss.),  451;  Forward  v.  Armistead,  12  Ala..  124;  Morris  v.  Lewis,  33 
id.,  53:  Black  v.  Cord,  2  Har.  &  Gill.,  100;  Ormsby  v.  Hunton,  3  Bibb.,  298; 
Darlington  v.  McCoole,  1  Leigh  (Va.),  36;  Bulford  v.  McKee,  1  Danna,  107; 
Holland  v.  Hindsley,  4  Iowa,  222;  Shepherd  v.  Shepherd,  1  Md.  Ch  ,  244; 
Yasser  V.  Yasser,  23  Miss.,  378;  Short  v.  Price,  17  Texas,  397;  Tomlinson  v. 
York,  20  id.,  694;  see,  however,  in  this  connection,  Taylor  v.  James,  4  Dessau's 
Eq.,  5;  Caukhvell  v.  Williams.  1  Bailey's  Eq.,  175;  Mclntire  v.  Hughes,  4 
Bibb.,  186;  Cabeen  v.  Gordon,  1  Hill  (8  C.  Ch.),  51;  Webb.  v.  Alton  Ins.  Co., 
10  111.,  225;  Lear  v.  Chontean,  23  id.,  39;  Andrews  v.  Andrews,  28  Ala.,  432; 
Hayes  v.  Kessow,  1  Sandf.  Ch.,  261 ;  Burling  v.  King,  66  Barb.,  633;  Saunders 
V.  Simpson,  2  Har.  &  Johns.,  81;  Wyche  v.  Green,  16  Ga.,  49. 

So  long  as  it  remains  executor}/,  equity  will  not  assist  in  perfecting  a  voluntary 
agreement  to  create  a  trust.  Holmes  v.  Holmes,  44  111.,  168;  Estate  of  Webb, 
49  Cal  ,  542;  Baylor  v.  Common,  40  Pa.  St.,  27. 

Judicial  sale.}  The  same  reciprocal  rights  exist  between  the  parties,  whether 
the  sale  is  judicial  or  private ;  in  each  case,  the  title  being  retained,  specific 
performance  will  not  be  decreed  unless  a  valuable  consideration  is  paid,  or 
offered,  at  or  before  the  time  of  the  decree.     Burgin  v.  Burgin,  82  N.  C,  196. 

Illegal  or  void  consideration  ]  An  executory  contract  will  not  be  enforced, 
where  it  is  founded  upon  an  illegal  or  void  consideration.  Piatt  v.  Maples,  19 
La.  An.,  409;  Paton  v.  Stewart,  78  III.,  481;  Butman  v.  Porter,  100  Mass.,  337. 

Voluntary  deed  lost  ]  In  Hodges  v.  Spicer,  79  N.  C.  223,  it  was  held  that  a 
court  of  equity  would  compel  the  grantor  in  a  voluntary  deed,  to  whom  it  was 
delivered  for  safe  keeping  after  execution,  and  who  had  lost  it,  to  execute 
another  deed  of  like  import. 

The  2)laintiff  must  seek  his  redress  at  law,  if  he  has  an  adequate  remedy  there. 
Coombe  v.  Meade,  2  Cranch,  C.  C  ,  547;  Drew  v  Hains,  8  Ala.,  438;  Field  v. 
Jones,  10  Ga.,  229;  Ross  v.  Buchanan,  13  III.,  55;  Kyle  v.  Frost,  29  Ind.,  382;. 
Smith  v.  Short,  11  Iowa,  523;  Clayton  v.  Carey,  4  Md.,  26;  Bonebright  v. 
Pease,  3  Mich.,  318;  Redmond  v.  Dickinson,  9  N.  J.,  507;  Phyfe  v.  Wardell, 
2  Ed.  Ch  ,  47;  Murdock  v.  Anderson,  4  Jones'  Eq.,  77;  Keeler  v.  Levy,  26  N. 
J.  Eq  ,  330;  Marble  Co.  v.  Ripley,  10  Wall.,  339;  Richmond  v.  Dubuque  R.  R. 
Co.,  33  Iowa,  422;  Deck's  Appeal,  57  Pa.  Stat.,  467;  Barnes  v.  Barnes,  65  N. 
C,  261;  Noyes  v.  March,  123  Mass,  286.  In  Orr  v.  Brown,  5  Ga.,  400,  the 
purchaser  at  a  sheriff's  sale  refused  to  take  the  property ;  it  was  resold  for  less. 
Held,  that  there  was  a  sufficient  remedy  under  the  statute ;  the  court  would  not 
compel  specific  performance  by  the  first  purchaser.  Genl.  Stat.  Mass.,  ch.  113, 
§  2.  Under  this  statute  it  was  held  that  specific  performance  would  not  be 
granted,  where,  at  the  time  of  the  filing  the  bill,  the  only  obligation  on  the  de- 
fendant's part  to  be  enforced,  was  his  express  promise  to  pay  a  definite  sum  of 
money  as  an  installment.  Jones  v.  Newhall,  115  Mass.,  244.  The  contract 
had  been  abandoned,  and  was  unexecuted.  Held,  that  there  was  a  remedy  at 
law  in  damages.  Qimre;  Might  it  not  also  have  been  objected  to  the  mainte- 
nance of  a  suit  in  equity,  that  the  relief  asked  required  of  the  court  a  superin- 
tendence of  the  construction  of  works  of  a  special  character,  and  to  see  that 
mey  were  adequate  to  meet  all  requirements  ol  the  contract?  Whitney  v.  New 
Haven,  23  Conn.,  624.  In  Richardson  v.  Brooks,  52  Miss.,  118,  the  plaintiff  had 
a  possible  remedy  at  law,  which  had  been  rendered  doubtful  by  the  fraud  of 
the  defendant.  Held,  that  this  will  not  defeat  the  jurisdiction  of  a  court  of 
equity.  A  court  of  equity  has  no  jurisdiction,  where  the  action  is  to  recover 
the  value  of  a  supposed  interest  in  certain  property,  upon  an  alleged  contract 
Til  ^'^^^^^^^'^ai^t  to  pay  the  same  to  the  plaintifi".     Stewart  v.  Mumford,  80 


EXTENT  OF  THE  JURISDICTION.  47 

doctrines  of  the  court  as  to  the  consideration  whicli  i.^rnie- 
ates  {I)  contracts  in  relation  to  marriage  settlements  must  be 
borne  in  mind  in  relation  to  the  foregoing  statement. 

sj  93.  In  the  case  of  contracts  for  the  X)urposes  of  pleasure, 
scientific  pursuits,  charity,  or  philanthropy,  it  has  been 
said(w)  that  "no  court  of  justice  can  interfere,  so  long  as 
there  is  no  property  the  right  to  which  is  taken  away  from 
the  ijerson  complaining." 

9.  Where  the  plaintiff  lias  elected  to  proceed  in  some  other 
manner  than  for  specific  performance. 

§  94.  Where  a  plaintiff  proceeded  at  common  law  and 
recovered  damages  for  breach  of  the  contract,  he  could  not 
afterwards  sue  in  equity  for  its  specific  performance.  (?i) 
But,  of  course,  it  was  not  every  proceeding  at  common  law 
under  a  contract  which  barred  its  specific  performance  in 
equity. (o)  This  result  was  effected  only  where  the  legal 
and  equitable  relief  were  in  respect  of  the  same  thing. 

§95.  In  Swinfen  v.  Swinfen,(pj  Knight  Bruce,  L.  J., 
seemed  to  think  that  the  fact  of  applying  to  the  court  of 
common  pleas  for  an  attachment  to  enforce  a  contract  to 
compromise  would  stand  in  the  way  of  the  applicant  after- 
wards suing  in  chancery  for  i^erformance  of  the  same  con- 
tract. And  in  Blackett  v.  Bates  ('7)  Lord  Cranworth  inti- 
mated the  opinion  that  a  party  to  an  award  could  not,  after 
unsuccessfully  taking  proceedings  to  set  it  aside,  insist  on 
having  it  specifically  j)erformed.  But  in  a  case  already  re- 
ferred to,  a  negotiation  for  the  payment  of  a  money  com- 
pensation whicli  went  off  was  held  not  to  be  an  election 
which  precluded  the  relief  in  specific  performance,  (r) 

§  -96.  In  a  case  where  a  railway  company  was  entitled 
to  enforce  a  contract  as  to  the  sale  of  lands  entered  into  by 
the  defendant  with  the  promoters  of  the  company,  the  com- 
pany first  took  proceedings  under  the  lands  clauses  consoli- 
dation act  for  a  compulsory  purchase,  then  took  compul- 
sory possession  of  the  land  by  virtue  of  a  bond,  and  lastly 

(0  Cf.  Infra,  §  ISO,  and  Re  D'Angibau,  15  (o)  North  v.  Great  Northern  Hallway  Co., 

Ch.  D.,  228,  242.    Consider  Lee  v.  Lee,  4  Ch.  2  Giff.,  (!4. 

D  ,  175.  (p)  2  De  G.  ic  J.,  3.*1,  3itl. 

{Ill)  Per  JeBsel,  M.  R.,  in  Rigby  v.  Connol,  (</)  L.  R.  1  Ch  ,  126. 

14  Ch.  D.,  487.  (r)  Greene  v.  West  Cheshire  Railway  Co., 

(n)  Salnter  v.  Ferguson,  1  Mac.  &  G.,  2S6;  L.  R.  13  Kq.,  44. 
cf.  Fox  V.  Scard,  33  Beav  ,  327. 


48  FRY  O^  SPECIFIC  PERFORMANCE  OF  COI^TRACTS. 

filed  tlieir  bill  for  specific  performance  of  the  contract.  It 
was  held  that  they  had  taken  the  benefit  of  sections  of  the 
lands  clauses  consolidation  act  to  which  they  were  not  enti- 
tled if  a  binding  contract  subsisted,  and  their  bill  was  dis- 
missed. (5) 

§  97.  It  is  conceived  that  the  principle  embodied  in  the 
case  last  cited  will  continue  to  be  observed  by  the  supreme 
court.  (^)  But  so  far  as  the  form  of  the  proceedings  is  con- 
cerned, the  right  of  claiming  alternative(2z-)  relief,  and  the 
wide  powers  of  amendment(w)  exercisable  under  the  new 
X^ractice,  will  in  all  proper  cases  enable  a  plaintiff  to  obtain 
relief  by  way  of  specific  performance,  provided  that  the 
facts  proved  and  the  rest  of  his  claim  as  presented  or  in- 
sisted on  at  the  trial  are  not  inconsistent  with  such  relief.  (2^) 

10.  Where  t/ie  Jurisdiction  lias  been  taken  away  by  statute. 
§  98.  By  section  47  of  the  fines  and  recoveries  abolition 

act  (3  and  4  W.  IV.,  c.  74),  the  jurisdiction  of  courts  of 
equity  in  regard  to  the  specific  performance  of  contracts  is 
altogether  excluded  in  cases  of  disposition  of  lands  under 
that  act  by  tenants  in  tail.(^) 

11.  The  jurisdiction  is  against  the  defendant  jpersonally. 
§  99.  The  jurisdiction  in  specific  performance  is  against 

the  person  of  the  defendant  on  the  equity  arising  from  the 
contract.     This  jDrinciple  is  fertile  in  results. 

§  100.  One  result  is,  that  where  the  defendant  is  a  per- 
son over  whom  the  tribunals  of  this  country  have  no  juris- 
disdiction,  there  can  be  no  relief.  Hence  no  specific  per- 
formance can  be  awarded  against  a  foreign  government  of 
a  contract  entered  by  such  government  with  a  jorivate 
person.  (2/) 

§  101.  Another  result  of  this  principle  is,  that  it  consti- 
tutes no  objection  to  specific  performance,  that  the  sub- 
ject-matter with  which  the  contract  deals  was  not  originally 
within  the  jurisdiction  of  the  court,  as  the  contract  itself 
may  give  the  court  jurisdiction  in  s^Decific  iDerformance,  as 

{»)  Bedford  and  Cambridge  Railway  Co.  v.  (w)  Cf.  Cargill  v.  Bower,  10  Ch.  D.,  502, 508; 

Stanley,  2  J.  &  H.,  746.  Newby  v.  Sharpe,  S  Ch.  D.,  39. 

(0  See  Thompson  v.  Ringer,  W.  N.  1881,48,  (x)  As  to  the  specific  performance  of  con- 
Infra,  §  1106.  tracts  to  disentail,  cf.  Petre  v.  Buncombe,  7 

(m)  Ord.  XIX,  r.  8.  Ha.,  24;  Bering  v.  Kynaston.L  R.  6  Eq.,210. 

(r)  Ord.  XXVII,  Ord.  LVIII,  r.  5.  (j/)  Smith  v.  Weguelin,  L.  R.  8  Eq.,  198. 


EXTEXT  OF  THE  JURISDICTION.  40 

well  as  in  damages.  Tlie  original  jurisdiction  in  respect  of 
tlie  boundaries  of  our  plantations  in  North  America  resided 
in  the  king  in  council ;  but  a  contract  resi)ecting  them 
having  been  entered  into  between  adjoining  proprietors 
was  held  by  Lord  Hard  wick  to  give  the  court  jurisdic- 
tion;(2:)  and  on  the  same  princii:)le,  although  the  court  has 
no  jurisdiction  in  matrimonial  causes,  yet,  where  there  has 
been  a  contract  or  covenant,  it  may  interfere  to  enforce 
the  execution  of  a  proj^er  sei')aration  deed,  or  to  restrain  the 
breach  of  a  covenant  contained  in  it.(«) 

§  102.  This  introduces  to  our  consideration  the  subject 
of  foreign  contracts.' 

The  general  principle  which  regulates  the  place  for  the 
enforcement  of  contracts  is,  it  is  conceived,  expressed  in 
the  maxim  "  actio  sequitur  forum  reiy{l>)  It  follows  from 
this  that  a  contract  made  abroad  may  be  enforced  against  a 
defendant  within  the  jurisdiction  of  this  country,  and  as 
the  remedies  for  breach  of  a  contract  are  clearly  governed 
by  the  lex  fori,  or  law  of  the  place  where  the  action  is 
brought, (c)  it  follows  that  it  is  no  objection  to  the  specific 
performance  in  England  of  a  foreign  contract  that  the  for- 
eign law  might  have  given  no  such  remedy. 

Accordingly  a  marriage  contract  made  in  France  was  spe- 
cifically executed  here,  the  parties  to  it  having  come  to  this 
country  as  refugees.  (rZ) 

§  103.  This  jurisdiction  is  not  confined  to  cases  of  con- 
tracts relative  to  personal  property,  but  extends  to  those 

(z)  Penn  v.  Lord  Baltimore,  1  Ves.  Sen.,  (6)  Davis  v.  Park,  L.  R  S  Ch..  862. 
444  Consider  Norrls  v.  Chambres,  3  De  G.  (c)  Story's  Conflict  of  Laws,  §  556. 
r.  &  J.,  583  (aflirminff  S.  C,  29  Beav.,  24«).  ((/)  Foubert  v.  Twist,  1  Bro.  P.  C,  120. 

(a)  Wilson  v.  Wilson,  1  H.  L.  C,  538;  S.  C, 
14  Sim.,  405;  5H.  L.  C,  40. 

^  Foreign  contrads.l^  Equity  will  decree  specific  iK-rforniuuce  of  a  coutract, 
notwithstandinrr  the  subject  was  not  origiually  witliiii  the  jurisdiction  of  the 
court;  the  relief  is  not  restricted  to  personal  contracts,  but  extends  to  reiil  es- 
tate when  the  parties  reside  within  the  jurisdiction,  or  are  temjiorarily  within 
such  jurisdiction,  and  are  served  with  process.  ]Massie  v.  "Watts,  6  Crauch, 
158;  "Watkins  v.  Holnian,  16  Pet.,  25;  Sutjihen  v.  Fowler,  9  Paiire's  Cb..  280; 
Stainsburg  v.  Fringer,  11  Gill.  &  Johns.,  149;  Wood  v.  AVarner,  !5  N.  J.  Eq., 
81;  Olmey  v.  Eaton,  GO  Mo.,  563:  Orr  v.  Quinn,  2  Law  Hepls.  (N.  C),  465; 
Cleveland  V.  Burrell,  25  Barb.,  5;52:  Doolev  v.  Watson.  1  Gray,  414;  McGreg- 
gorv.  ■McGrcirsror,  9  Iowa.  65;  Kenn  v.  HaVward.  14  Ohio  St.,  302;  see.  how- 
ever, Peter  v.^Worthinuton,  14  Ala.,  584;  Carter  v.  Jordon,  15  Ga,,  76;  Smith 
v.  Iversou,  22  id..  190; ""Akin  v.  Llovd,  28  111.,  331 ;  Birchard  v.  C'hcever,  40  Vt  , 
94.  In  Wiscon.sin,  in  an  action  to  "enforce  specific  performance  of  a  contract 
to  convey  land— Held,  that  the  bill  might  be  filed  in  any  court  in  the  State. 
Burrill  v.  Fames,  5  "Wis.,  260. 

4 


50  FEY  ON  SPECIFIC  PERFOKMANCE  OF  CONTRACTS, 

relative  to  real  or  immovable  proi)erty,  where  the  defend- 
ant is  within  the  jurisdiction  of  the  court.  The  maxim  is 
'''■^quitas  agit  in  i^ersonam^^^  and  any  operation  of  the 
judgment  on  the  immovable  estate  abroad  is  not  direct  but 
indirect,  and  only  through  the  medium  of  the  person  affected 
by  the  judgment.  Thus,  where  Sir  Philip  Cartaret,  the 
ow^ner  of  the  island  of  Sark,  had  mortgaged  it,  and  a  bill 
was  brought  against  him  by  the  mortgagee  for  foreclosure, 
a  plea  put  in  by  the  defendant  that  the  island  was  not 
within  the  jurisdiction  of  the  court  of  chancery  was  over- 
ruled, (d)' 

§  104.  But  the  court  has  been  careful  to  confine  its  juris- 
diction to  relief  arising  strictly  from  privity  of  contract : 
it  has  nothing  to  do  with  rights  arising  from  privity  of  es- 
tate in  any  other  country. (/")  So  in  Norris  v.  Chambres(^) 
the  court  declined  to  enforce  a  lien  on  foreign  real  estate, 
though  the  parties  were  residing  here,  and  the  defendant 
had  taken  the  estate  with  notice  of  the  contract  from  which 
the  lien  was  sought  to  be  raised, 

§  105.  It  has  been  said  by  Mr.  Justice  Story, (7^)  that 
"the  doctrine  of  the  English  courts  of  chancery  on  this 
head  of  jurisdiction  seems  carried  to  an  extent  which  may 
X)erhaps  in  some  cases,  not  find  a  i)erfect  warrant  in  the 
general  principles  of  international  public  law,"  And  Lord 
Romilly,  M.  E,,,  in  the  case  last  cited,  ado^^ting  this  remark, 
expressed  his  disposition  not  to  go  a  step  further  than  the 
cases  warranted  and  demanded. (/) 

§  106.  It  remains  to  notice  a  case  in  which  the  court  of 
chancery  granted  relief  with  a  view  to  si^ecific  performance 
against  a  defendant  not  within  the  jurisdiction,  (j*')    In  that 

(«)  Toller  V.  Carteret,  2  Vern.,  494.    See,  (K)  Conflict  of  Laws,  §  544  (2d  ed.). 

too.  Comes  Arglasse  v.  Muschamp,  1  Vorn.,  \i)  See  further,  as  to  land  in  the  Colonies, 

75;   Jackson  v.  Petrie,  10  Ves.,  164;   Lord  Re  Holmes,  2  J.  &  H.,527;  Sichel  v.  Raphael, 

Portarllngton  v.  Soulby,  3  My.  &  K.,  104, 108;  3  N.  R..  662 ;  Reiner  v.  Marquis  of  Salisbury, 

Story  Eq.  Jur.,  §  743.  2  Ch.  D.,  378;  and  cf.  per  Jessel,  M.  R.,  in 

(/)  Vincent  v.  Godson,  4  De  G,  M.  &  G. ,  Norton  v.  Florence  Land  and  Public  Works 

646.    See,  too,  the  argument  in  Innes  v.  Mit-  Co.,  7  Ch.  D.,  335. 

chell,  4  Drew.,  57,  and  the  cases  collected  in  O)  Hart  v.  Herwig,  L.  R.  8  Ch.,  860.    Dls- 

the  note,  p.  99.  tinguish  Rowney  v.  Alder,  before  Pollock, 

(J?)  29  Beav.,  -246;  3  De  G.  F.  &  J.,  583.  B.,  as  Vacation  Judge,  24  Sol.  Jo  ,  807. 

'  It  has  been  decided,  in  New  York,  that  a  court  of  equity  may  compel  the 
specific  performance  of  a  contract  to  purchase  land,  though  such  contract  was 
both  made  and  to  be  performed,  and  the  land  lies  within  a  foreign  jurisdiction, 
provided  that  the  defendant  has  been  duly  served  with  process  and  subjected 
to  the  jurisdiction  of  the  court.  Cleveland  v,  Burnell,  25  Barb.,  532;  New- 
bom  V.  Bronson,  3  Kern.  (N.  Y.),  587, 


EXTENT  OF  THE  JURISDICTION.  51 

case  Hart,  a  domiciled  Englisliman,  agreed  at  Hamburg 
^vitli  Herwig,  domiciled  at  Hamburg,  for  the  purchase  of  a 
ship  to  arrive  from  San  Francisco,  for  a  certain  sum  liable 
in  the  event  of  certain  damage  to  an  abatement.  The  ship 
arrived  in  this  country.  The  plaintiff  claimed  the  abate- 
ment, the  amount  of  which  he  alleged  could  be  ascertained 
by  a  survey,  which  Herwig  and  the  master  refused,  and  de- 
clined to  complete  except  on  payment  of  the  full  price. 
The  bill  was  against  Herwig  and  the  master,  and  prayed 
specific  performance  and  an  injunction  against  removmg 
the  ship.  This  injunction  was  granted  by  Malins,  V.  C, 
and  upheld  by  James  and  Mellish,  L.  J  J.  Their  Lordships 
drew  a  distinction  between  an  action  for  damages  and  the 
suit.  H  it  had  been  the  former,  it  was  said  that  the  action 
must  have  been  in  the  forum  of  the  defendant.  "But 
where,"  said  James,  L.  J.,  "the  contract  as  in  this  case, 
though  made  abroad,  is  to  deliver  a  thing  in  specie  to  a 
person  in  this  country,  and  the  thing  itself  is  lu-ought  here, 
then  the  court  here,  in  the  exercise  of  its  discretion,  will 
see  that  the  thing  to  be  delivered  in  this  country  does  not 
leave  this  country,  so  as  to  defeat  the  right  of  the  plaintiff 
to  have  it  so  delivered.  "(^•)  The  law  thus  laid  down  seems 
to  create  an  exception  to  the  general  principle  of  interna- 
tional law,  which  requires  the  plaintiff  to  seek  the  defend- 
ant and  to  sue  in  his  forum.  The  decision  is  remarkable, 
but  it  has  the  authority  of  three  unanimous  judges. 

12.  Quasi-contracts  in  respect  of  loliicJi  the  court  has 
jurisdiction. 

§  107.  There  is  a  class  of  quasi-contracts  in  res2)ect  of 
which  the  court  entertains  jurisdiction,  viz.:  where  the  re- 
lationship of  vendor  and  purchaser  is  constituted  by  the 
exercise  of  those  compulsory  powers  of  railway  and  other 
companies  which  are  conferred  by  the  lands  clauses  consoli- 
dation act,  1845,  and  similar  statutes.  They  are  here  called 
quasi-contracts,  because  when  the  proceedings  are  strictly 
under  the  statute  there  is  an  absence  on  the  part  of  the  man 
whose  land  is  taken  of  that  volition,  which  seems  an  essen- 
tial element  in  all  true  contracts. 

{k)  PageS64. 


^ 


62  FKY  OX  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

§  108.  It  was  at  one  time  supposed  tliat  the  mere  notice 
to  treat  constituted  the  relation  of  vendor  and  purchaser  to 
such  an  extent  that  a  suit  in  equity  could  thereupon  be 
maintained.  But  it  is  now  well  ascertained  that  such  is  not 
the  case,  and  that  though  the  notice  constitutes  the  relation 
for  certain  purposes,  such  as  that  the  particular  lands  to  be 
taken  are  fixed,  and  that  the  company  cannot  get  rid  of  the 
obligation  to  take  nor  the  landowner  of  the  obligation  to 
give  up  these  lands,  yet  that  there  is  no  contract  between 
the  23arties  and  no  ground  for  equitable  intervention.  (Z) 

§  109.  After  this  notice  is  given,  the  act  points  out  the 
method  in  which  the  purchase-money  is  to  be  ascertained. 
If  the  amount  claimed  do  not  exceed  £50,  it  is  to  be  settled 
by  two  justices ;  if  it  exceed  £50  it  is  to  be  settled  by  arbi- 
tration if  the  landowner  so  require,  but  otherwise  by  a  jury, 
to  be  summoned  at  the  instance  of  the  company,  (m) 

§  110.  If  after  notice  given  the  landowner  refuse  to  con- 
vey, the  company  can  proceed  against  him  under  their  statu- 
tory powers,  but  have  no  ground  for  equitable  relief ;  and 
conversely  if  after  notice  the  company  refuse  to  proceed, 
the  landowner  cannot,  it  is  conceived,  generally  sue  in 
equity ;  but  he  may  apply  for  a  mandamus  to  compel  the 
company  to  proceed  under  the  statute  to  ascertain  the  com- 
pensation money  payable.  (7z) 

§  111.  There  is  one  case,(o)  however,  in  which  jurisdic- 
tion was  entertained  by  the  court  of  chancery  to  enforce  on 
the  railway  company  proceedings  under  the  lands  clauses 
consolidation  act.  The  question  was  how  far  a  piece  of  land 
came  within  the  definition  of  curtilage,  so  that  if  the  com- 
pany took  any  j)art  they  could  be  compelled  to  take  the 
whole  under  section  92  of  the  lands  clauses  consolidation 
act.  The  company  gave  a  notice  to  take  the  part ;  the  plain- 
tiff gave  a  counter- notice  to  take  the  whole ;  the  comjDany 
took  possession  of  part,  and  the  plaintiff  thereupon  filed  his 
bill  and  obtained  at  the  hearing  a  declaration  that  the  com- 
pany were  liable  to  take  the  whole  and  a  reference  for  title ; 

(I)  Haynes  v.  Haynes,  1  Dr.  &  Sm.,  426,  way  Co.,  2  Mac.  &  G.,  118;  Lind  v.  Isle  of 

where  all  the  earlier  cases  are  considered  Wight  Ferry  Co.,  7  L.T.  (N.  S.),  416;  1  N.  R., 

and   classified.    See,   however,   Marson   v.  13 ;  cf.  Leominster  Canal  Navigation  Co.  v. 

London,  Chatham  and  Dover  Railway  Co.,  Shrewsbury  and  Hereford  Railway  Co.,  3  K. 

L.  R.  6  Eq.,  101 ;  7  Eq.,  546.  &  J.,  654 ;  and  consider  Baker  v.  Metropolitan 

(m)  Lands  Clauses  Consolidation  Act,  1845,  Railway  (Jo.,  31  Beav.,  504,  511. 

§§  2-i,  23.  (o)  Marson  v.  London,  Chatham  and  Dover 

(n)  Adams  v.  London  and  Blackwall  Rail-  Railway  Co.,  L.  R.  6  Eq.,  101. 


EXTENT  OF  THE  JURISDICTION.  53 

when  the  case  came  on  for  further  consideration  (^;)  the 
plaintiff's  counsel  admitted  that  there  was  no  precedent 
pointing  out  what  course  was  to  be  pursued  ;  but  they 
asked  and  obtained  a  direction  that  the  defendant  company 
should  proceed  under  the  lands  clauses  consolidation  act  to 
ascertain  the  amount  payable  for  the  value  of  the  land,  and 
directions  for  the  payment  of  this  amount  and  execution  of 
the  conveyance.  The  question  of  jurisdiction  to  make  such 
a  decree  as  was  made  does  not  seem  to  have  been  raised  at 
the  hearing. 

§  112.  After  the  ascertainment  of  the  amount  of  pur- 
chase-money, the  equitable  jurisdiction  of  the  court  of  chan- 
cery was  clear.  There  then  exists  what  has  been  called  a 
parliamentary  contract,  and  the  performance  of  that  so- 
called  contract  could  not  be  enforced  at  common  law,  for 
the  courts  of  common  law  having  no  machinery  for  investi- 
gating the  title  or  settling  the  conveyance  could  not  do  com- 
plete justice  between  the  parties;  but  a  suit  might  have 
been  maintained  in  equity  by  either  party  to  carry  into  exe- 
cution this  quasi-contract.  (^)  For  this  purpose  it  seems  to 
have  been  considered  immaterial  whether  the  compensation 
money  had  been  ascertained  in  strict  pursuance  of  the  act 
or  otherwise.  In  Mason  v.  Stokes  Bay  Pier  and  Railway 
Co.(r)  and  Harding  v.  The  Metropolitan  Railway  Co. (.9)  the 
compensation  money  was  ascertained  by  statutory  arbitra- 
tions ;  in  Nash  v.  The  Worcester  Improvement  Commis- 
sioners (t)  by  the  verdict  of  a  jury,  in  Inge  v.  Birmingham, 
Wolverhampton  and  Stour  Valley  Railway  Co.{u)  the  com- 
pensation was  settled  by  correspondence,  in  The  Regent's 
Canal  Co.  v.  Ware  {v)  by  arbitrators  appointed  under  a  writ- 
ten agreement,  and  in  Watts  v.  Watts  (■?/?)  by  two  surveyors 
named  by  jmrol ;  and  in  all  these  cases,  as  well  where  the 
act  was  as  where  it  was  not  strictly  pursued,  the  court  of 
chancery  entertained  jurisdiction.  In  the  latter  class  of 
cases  the  relation  constituted  ai)proached  to,  if  it  did  not 
assume,  the  character  of  true  contract. 

J;  113.  It  is  probahly  hardly  needful  to  observe  tliaf.  if, 

(p)  L.  R.  7  Eq.,  546.  {s)  L.  R.  7  Ch.,  154. 

{</)  Regent's  Canal  Co.  v.  Ware,  23  Beav.,  (<)  1  Jur.  (N.  S.i,  U73. 

575;  Mason  v.  Stokes  Bay  Pier  and  Railway  (u)  1  Sm.  &  Gill".,  ;i47;  S.  C,  3  De  G.  M.  & 

Co.,  SZ  L.  J.  Ch.,  110;  11  W.  R.,  so;  Harding  G.,  65S.    See,  too,  Bee  v.  Stafford  and  Uttox- 

V.  Metropolitan  Railway  Co.,  L.  R.  7  Ch.,  eter  Railway  Co.,  23  vv.  R.,  s<53. 

154;  Watts  v.  Watts,  I>.  R.  17  Eq.,  217.  (v)  23  Beav.,  575. 

(r)  11  W.  R.,  80;  32  L.  J.  Ch.,  UO.  (if)  L.  R.  17  Eq.,  217. 


54  FRY  OX  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

after  statutory  notice,  a  contract  should  be  entered  into  be- 
tween the  company  and  the  landoAvner,  such  a  contract  may 
be  the  subject-matter  of  an  action  for  specific  performance, 
just  in  the  same  way  as  any  other  contract,  (rr)  It  is  none 
the  less  a  contract,  because  the  relations  between  the  parties 
began  under  the  statutory  powers  of  the  company.' 

(X)  Per  Kindersley,  V.  C,  in  Havnes  v.  but  unsuccessfully,  tried  to  give  the  go-by  to 

Haynes    1  Dr    &  Sm.,  457.     See  Wells  v.  the  contract  by  proceedings  under  §§  76,  77 

Chelmsford  Local  Board  of  Health  (15  Ch.  of  the  lands  clauses  act. 
D.,  Iii8),  where  the  defendants  ingeniously, 


'  Not  decreed  wJien  it  looidd  be  inequitable  so  to  do.]  Where  the  contract  is  for 
the  sale  of  laud,  the  court  will  not  decree  the  specific  performance  of  a  con- 
tract to  convey,  where  it  would  be  unjust  and  inequitable  so  to  do.  Fitzpatrick 
V.  Dorland,  27  Hun,  291. 

Reqidsiti'S.]  Particularity,  a  consideration  (which  must  be  a  valuable  one), 
certainty,  mutuality  and  a  necessity  for  performance,  are  requisites  upon  which 
the  equity  of  a  case  arises.  Ashton  v.  Robinson,  49  Miss.,  348;  see,  also, 
Willard  v.  Taylor,  8  "Wall.,  557. 

Powers  of  United  States  courts.]  The  powers  and  rules  of  decision  are  the 
same  in  all  the  States;  the  equity  jurisdiction  is  derived  from  the  constitution 
and  the  laws  of  the  United  States.     Noonan  v.  Lee,  2  Black. ,  499. 

Specific  ])e7'fo?-mance  as  to  contracts  of  insurance.]  Where  there  is  a  contract 
to  insure,  and  a  loss  has  occurred,  the  court  will  not  compel  the  plaintiflF  to 
have  recourse  to  an  action  at  law ;  it  will  decree  specific  performance  of  the 
contract  and  paj'ment.  Mead  v.  Davison,  3  Adol.  &  El.,  303;  Carpenter  v. 
Mutual  Safety  Ins.  Co.,  4  Sandf.  Ch.,  408;  Perkins  v.  Wash.  Ins.  Co.,  4  Com. 
645;  S.  C,  23  Wend.,  18,  425;  Taylor  v.  Merchants'  Fire  Ins.  Co.,  9  How.  (N. 
S.),  405. 


CONTEACTS   WITH   A   PENAL   SUM.  55 


CHAPTER  III. 

OF   CONTEACTS   WITH   A   PENAL    OE   OTHEE  LIKE   SUM. 

§  114.  From  the  principles  stated  in  the  last  chapter,  it 
appears  that  where  a  contract  is  substantially  x)erformed  by 
the  payment  of  a  sum  of  money,  the  common  law  remedy 
being  adequate,  equity  mil  not  interfere.  Hence,  in  cases 
where  there  is  added  to  the  contract  a  clause  for  the  pay- 
ment of  a  sum  of  money  in  the  event  of  non-performance, 
the  question  arises  whether  the  contract  will  be  satisfied  by 
its  payment,  or  whether  it  will  not.  In  the  former  case, 
equity  will  not  interfere ;  in  the  latter  it  may. 

§  115.  The  question  always  is.  What  is  the  contract?  Is 
it  that  one  certain  act  shall  be  done,  with  a  sum  annexed 
whether  by  way  of  penalty  or  damages  to  secure  the  i^er- 
f ormance  of  this  very  act  ?  or  is  it  that  one  of  two  things 
shall  be  done  at  the  election  of  the  party  who  has  to  per- 
form the  contract,  namely,  the  performance  of  the  act  or  the 
payment  of  the  sum  of  money  X  If  the  former,  the  fact  of 
the  penal  or  other  like  sum  being  annexed  will  not  prevent 
the  court  enforcing  performance  of  the  very  act,  and  thus 
carrying  into  execution  the  intention  of  the  parties  ;  («)  if 
the  latter,  the  contract  is  satisfied  by  the  payment  of  a  sum 
of  money,  and  there  is  no  ground  for  proceeding  against  the 
party  having  the  election  to  compel  the  performance  of  the 
other  alternative.' 

§  116.  From  what  has  been  said  it  will  be  gathered  that 

(a)  Howard  V.  Hopkins,  2  Atk.,  371;  Frencli    tholomew,  12  Pri.,  797. 
V.  Macale,  2  Dr.  &  War  ,  269;  Roper  v.  Bar- 

1  The  test,  in  these  cases,  by  which  to  determine  whether  relief  will,  or  will 
not,  be  granted  in  equity,  is  to  consider  whether  compensation  can  be  made  or 
not.  If  it  can  be  made,  then  equity  will  interfere;  if  it  cannot,  equity 
will  not  interfere.  Hackett  v.  Alcott,  1  Call.,  533;  Skinner  v.  Dayton,  3  John. 
Ch.,  431.  City  Bank  of  Baltimore  v.  Smith,  3  Gill  &  John.,  265.  But  the 
case  must  be  such  that  the  party  can  be  fully  and  clearly  indemnified,  and 
placed  in  sitatn  quo.  Skinner  v.  Dayton,  3  John.  Ch.,  431;  S.  P.,  Skinner  v. 
White,  17  id.  357. 


66        FEY  o:n^  specific  performance  of  contracts. 

contracts  of  the  kind  now  under  discussion  are  divisible  into 
three  classes : 

(1)  Where  the  sum  mentioned  is  strictly  a  penalty — a  sum 
named  by  way  of  securing  the  iDerformance  of  the  contract, 
as  the  penalty  in  a  bond. 

(2)  Where  the  sum  named  is  to  be  paid  as  liquidated 
damages  for  a  breach  of  the  contract. 

(3)  Where  the  sum  named  is  an  amount  the  payment  of 
which  may  be  substituted  for  the  performance  of  the  act  at 
the  election  of  the  person  by  whom  the  money  is  to  be  paid 
or  the  act  done. 

Where  the  stipulated  payment  comes  under  either  of  the 
two  first  mentioned  heads  the  court  will  enforce  the  con- 
tract, if  in  other  respects  it  can  and  ought  to  be  enforced, 
just  in  the  same  way  as  a  contract  not  to  do  a  particular  act 
with  a  penalty  added  to  secure  its  performance  or  a  sum 
named  as  liquidated  damages  may  be  specifically  enforced 
by  means  of  an  injunction  against  breaking  it.  On  the 
other  hand,  where  the  contract  comes  under  the  third  head, 
it  is  satisfied  by  the  payment  of  the  money,  and  there  is  no 
ground  for  the  court  to  compel  the  specific  performance  of 
the  other  alternative  of  the  contract. (&)  It  will  be  conven- 
ient to  consider  the  three  classes  of  cases  separately. 

§  117,  (1)  A  penalty  (strictly  so  called)  attached  to  the 
breach  of  the  contract  will  not  prevent  it  from  being  specifi- 
cally enforced. 

"The  general  rule  of  equity,"  said  Lord  St.  Leonards,(c) 
"is  that  if  a  thing  be  agreed  upon  to  be  done,  though  there 
is  a  penalty  annexed  to  secure  its  performance  yet  the  very 
thing  itself  must  be  done.  If  a  man,  for  instance,  agree  to 
settle  an  estate  and  execute  his  bond  for  £600  as  a  security 
for  the  performance  of  his  contract,  he  will  not  be  allowed 
to  pay  the  forfeit  of  his  bond  and  avoid  his  agreement,  but 
he  will  be  compelled  to  settle  the  estate  in  sj)ecific  perform- 
ance of  his  agreement.  (^)  So,  if  a  man  covenant  to  abstain 
from  doing  a  certain  act  and  agree  that  if  he  do  it  he  will 

(b)  "There  are,"  said  Brarawell.B.,  In  Legh  statute;  and  thirdly,  covenants  that  acts  shall 

V.  Llllie,  6  H.  &  N.,  165,  171 ;  30  L.  J.  Ex.  25,  not  be  done  unless  subject  to  a  certain  pay- 

28,  "three  classes  of  covenani  8 :  first,  coven-  ment." 

ants  not  to  do  particular  acts,  with  a  penalty  (c)  In  French  v.  Macale,  2  Dr.  &  War., 

for  doing  them,  which  are  within  the  S  and  9  274-5 

Win.  Ill,  ch  11;  secondly,  covenants  not  to  (d)  The  case  referred  to  seems  to  be  Chil- 

do  an  act,  with  liquidated  damages  to  be  paid  liner  v.  Chilliner,  2  Ves.  Sen  ,  5;8. 
if  the  act  is  done,  which  are  not  within  the 


CONTRACTS   WITH   A   PENAL   SUM.  57 

pay  a  sum  of  money ;  it  would  seem  that  lie  will  be  com- 
pelled to  abstain  from  doing  tliat  act,  and,  just  as  in  the 
converse  case,  he  cannot  elect  to  break  his  engagement  by 
paying  for  his  violation  of  the  contract." 

§  118.  Thus  where  two  persons  entered  into  articles  for 
the  sale  of  an  estate,  with  a  proviso  that,  if  either  side 
should  break  the  contract,  he  should  pay  £100  to  the  other, 
and  the  defendant,  by  his  answer,  insisted  that  it  was  the 
intention  of  both  parties  that,  upon  either  paying  £100,  the 
contract  should  be  absolutely  void,  Lord  Hardwicke  never- 
theless decreed  specific  j)erformance  of  the  contract  to 
sell.(e)  In  another  case,  the  condition  recited  a  contract  for 
a  settlement  comprising  a  sum  of  money  and  also  real  estate; 
the  penalty  was  double  this  sum  of  money,  but  had  no  rela- 
tion to  the  real  estate  ;  the  court  granted  specific  i^erform- 
ance  of  the  contract  embodied  in  the  condition.  (/)  And 
where  a  father,  in  consideration  of  his  daughters  giving  up 
a  part  of  their  interest  in  the  property,  agreed  to  make  up 
their  incomes  arising  out  of  it  to  £200  a  year,  and  entered 
into  a  bond  for  the  payment  of  such  sum  as  might  be  need- 
ful for  that  purpose,  and  the  bond  recited  the  contract,  the 
court  took  this  as  evidence  of  the  contract,  and  accordingly 
granted  relief  on  the  foot  of  it  beyond  the  bond ;  {g)  and  in 
a  case  which  went  to  the  House  of  Lords,  a  contract  (con- 
tained in  the  condition  of  a  bond)  to  give  certain  property 
by  will  or  otherwise,  was  held  not  to  be  satisfied  by  the 
penalty,  but  was  specifically  performed.  (7^) 

§  119.  So,  again,  a  contract  not  to  carry  on  a  particular 
kind  of  business  within  certain  limits  expressed  in  the  con- 
dition to  a  bond  can  be  enforced  by  injunction.  (/) 

§  120.  (2)  The  difference  between  penalty  and  liquidated 
damages  is,  as  regards  the  common  law  remedy,  most  ma- 
terial. For  according  to  common  law,  if  the  sum  named  is 
not  a  penalty,  but  the  agreed  amount  of  liquidated  dam- 
ages, the  contract  is  satisfied  either  by  its  performance  or 
the  payment  of  the  money,  [j)    But  as  regards  the  equitable 

(f)  Howard  v.  Hopkins,  2  Atk.,  371.  (i)  Clartson  v.  Edge,  33  Beav.,  227;  Grave- 

(/)  Prebble  v.  Boghurst,  :  Sw.,  309.  ly  v.  Barnard,  L,.  R.  IS  Eq  ,  518 


(g)  Jeudwine  V.  Agate,  3  Sim.,  Ul.  (j)  Anon.,  Hard.,  320  ;    Lowe  v.  Peers,  i 

(h  Logan  V.  Wienholt,  7  Bli.  (N.  S.),  1;  1     Burr  ,22.'5;  Hurst  v.  Hurst,  4  Ex  ,571;  Legh 

V.  L 

El. 

776. 


Qi)  Logan  v.  Wienholt,  7  Bli.  (N.  S.),  1;  1 ,  ,  - 

CI.  &  Fin  ,  611.    See,  also,  Butler  v.  Fowls,  2    v.  Lillie.  6  H.  &  N  ,  165;  Mercer  v.   Irving, 
Coll  ,  156.  El.  B.  &  E.,  563;  Atkyns  v.  Kinneir,  4  Ex., 


58  FRY  OX  SPECIFIC  PERF0E3IANCE  OF  CONTRACTS. 

remedy  the  distinction  is  unimportant ;  for  the  fact  that  the 
sum  named  is  the  agreed  amount  to  be  paid  as  liquidated 
damages  is,  equally  with  a  penalty  strictly  so  called,  inef- 
fectual to  prevent  the  court  from  enforcing  the  contract  in 
specie,  (ly 

§  1:31.  The  simplest  illustration  of  this  is  the  ordinary 
case  of  a  stipulation  on  the  sale  of  real  estate  that  if  the 
purchaser  fail  to  comply  with  the  condition  he  shall  forfeit 
the  deposit,  and  the  vendor  shall  be  at  liberty  to  resell  and 
recover  as  and  for  liquidated  damages  the  deficiency  on  such 
resale  and  the  expenses.  (Z)  Such  a  condition  has  never  been 
held  to  give  the  i^urchaser  the  oi3tion  of  refusing  to  perform 
his  contract  if  he  choose  to  pay  the  penalty,  nor  to  stand  in 
the  Avay  of  specific  ^performance  of  the  contract. 

§  122.  In  French  v.  Macale(m)  Lord  St.  Leonards  fully 
discussed  the  law  as  to  compelling  the  performance  of  con- 
tracts of  the  kind  under  discussion.  In  that  case  there  was 
a  covenant  in  a  farming  lease  "not  to  burn  or  bate  the  de- 
mised premises,  or  any  part  thereof,  under  the  penalty  of 
£10  per  acre,  to  be  recovered  as  the  reserved  yearly  rent  for 
every  acre  so  burned."  His  lordship  appears  to  have  con- 
sidered this  increased  rent  as  in  the  nature  of  liquidated 
damages  and  not  a  penalty ;  but,  nevertheless,  he  granted 
an  injunction  against  the  burning,  saying  after  a  careful 
review  of  the  authorities  that  in  every  case  of  this  nature 
the  question  is  one  of  construction,  and  that  the  court  will 
always  interfere  unless  there  is  evidence  of  an  intention  that 
the  act  is  to  be  permitted  to  be  done  on  iDayment  of  the 
increased  rent, 

§  123.  In  one  case  a  deed  was  executed  dissolving  a  part- 
nership between  H.  and  L.,  and  containing  a  recital  that  it 
had  been  agreed  that  the  deed  should  contain  a  covenant  by 
L.  not  to  carry  on  the  trade  within  one  mile  from  the  old 

(k)  City  of  London  v.  Pugh,  4  Bro.  P.  C,  {[)  "X    purchaser,"  said   Lord   Eldon   in 

395;  Webb  v.  Clark,  1  Fonbl.  Eq  ,  154;  French  Crutchley  v.  Jernlngham  (2  Mer.,  506),  "  has 

V.  Macale,  2  Dr.  &  War.,  296;  Coles  v.  Sims,  no  right  to  say  that  he  will  put  an  end  to  the 

5  De  G.  M.  &  G.,  1 ;  Garden  v.  Butler,  Hayes  agreement,  forfeiting  his  deposit."  Cf.  Long 

6  J.,  112;  Bird  v    Lake,  1  H.  &  M.,  HI;  cf.    v.  Bowring,  33  Beav.,  585. 
Bray  v.  Fogarty,  I.  R.  4  Eq.,  544.  (?«)  2  Dr.  &  War.,  369. 

_  ^  Liquidated  damages. '\  Where  the  contract  stipulates  for  the  payment  of 
liquidated  damages  in  case  of  failure  of  performance,  the  court  may  decree 
specific  performance,  unless  the  agreement  itself  gives  an  option  of  payment 
instead  of  performance.  Hull  v.  Sturdivant,  46  Me.,  44;  Dooley  v.  Watson,  1 
Oray,  414;  Hooker  v.  Pynchon,  8  id.,  550. 


1 


CONTRACTS   AVITII   A    PEXAL   SUM.      •  69 

place  of  business  "without  paying  to  H.,  as  or  by  way  of 
stated  or  liquidated  damages,"  a  sum  named.  In  a  subse- 
quent part  of  the  deed  there  was  an  al)solute  covenant  not 
to  carry  on  the  trade  Avithin  that  limit,  followed  by  a  proviso 
that  if  L.  should  act  contrary  to  or  in  infringement  of  that 
agreement  he  would  immediately  thereupon  pay  to  H.  the 
sum  of  £1,500  by  way  of  liquidated  damages.  Notwith- 
standing the  recital  and  the  form  used,  it  was  held  that  L. 
was  not  entitled  to  break  the  covenant  on  paying  the  £1,500, 
and  an  injunction  was  granted. (??,)' 

§  1'24.  The  same  view  was  put  forward,  though  perhaps 
in  slightly  different  language,  by  the  lords  justices  in  Coles 
V.  Sims.(c»)  That  Avas  a  case  in  which  there  were  mutual 
covenants  between  a  vendor  of  part  of  his  land  and  the  pur- 
chaser of  that  part  as  to  building  on  the  sold  and  unsold 
parts,  with  a  stipulation  for  payment  of  liquidated  damages 
in  case  of  breach  or  covenant.  On  an  application  for  an 
interim  injunction  (which  was  granted).  Knight  Bruce,  L.  J., 
said  -.{p)  "  If  I  were  now  deciding  the  cause,  I  should  proba- 
bly come  to  the  conclusion  that  in  a  case  where  a  covenant 
is  protected  (if  I  may  use  the  expression)  hj  a  i^rovision  for 
liquidated  damages,  it  must  be  in  the  judicial  discretion  of 
the  court,  according  to  the  contents  of  the  whole  instrument 
and  the  nature  and  circumstances  of  the  particular  instance, 
whether  to  hold  itself  bound  or  not  bound  upon  the  ground 
of  it  to  refuse  an  injunction  if  otherwise  proper  to  be  granted; 
and  that  in  the  present  case,  the  circumstances  are  such  as 
to  render  it  right  for  the  conrt  to  grant  an  injunction."' 
Turner,  L.  J.,  added  :  "The  question  in  such  cases,  as  I  con- 
ceive, is  whether  the  clause  is  inserted  by  way  of  penalty, 
or  whether  it  amounts  to  a  stipulation  for  liberty  to  do  a 
certain  act  on  payment  of  a  certain  sum." 

§  125.  Where  the  contract  to  do  or  not  to  do  the  act  is 

(?!)  Bird  V.  Lake,  1  11.  &  M.,  111.  (p)  5  De  G.  M.  &  G.,  'J. 

(o)  5  De  G.  M.  &  G.,  1. 

'  Inpaiction.]  A  bond  was  given  ])y  a  clerk  to  his  oniployer,  in  ihe  penalty 
of  £1,000,  stipulating  that  the  obligor  should  not  carry  on  the  .same  business 
■within  a  specified  distance.  Ileld.lhat  the  bond  was  not  merely  to  secure  the 
price  of  doing  the  business  on  the  clerk's  part,  but  to  prevent  him  from  iloiug 
it.  An  injunction  was  granted.  Howard  v.  Woodward,  84  L.  J.  C,  47;  Jones 
V.  Heaueus,  L.  R.,  4  D.  C,  636;  see,  however,  IS^obles  v.  Bates,  7  Cow..  307; 
Dakiu  V.  Williams,  23  Wend.,  201. 


60  FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

distinct  from  the  obligation  to  pay  a  sum  of  money,  it  seems 
that  either  the  contract  or  the  obligation  may  be  sued  on. 

•^  Where  a  person,"  said  Lord  Romilly,  M.  E,.,  in  Fox  v. 
Scard,!^)  "enters  into  an  agreement  not  to  do  a  particular 
act  and  gives  his  bond  to  another  to  secure  it,  the  latter  has 
a  right  at  law  and  in  equity,  and  can  obtain  relief  in  either, 
but  not  in  both,  courts." 

§  126.  It  is  clear  that  the  fact  that  the  contract  may  be 
comprised  in  a  bond  does  not  of  itself  import  any  election 
to  pay  the  money  and  refuse  to  do  the  act.(r) 

§  127.  (3)  In  the  third  class  of  contracts,  which  may  be 
distinguished  as  alternative  contracts,  the  intention  is  that 
a  thing  shall  be  done  or  a  sum  of  money  paid  at  the  election 
of  the  person  bound  to  do  or  pay. 

In  these  cases  the  contract  is  as  fully  performed  by  the 
payment  of  the  money  as  by  the  doing  of  the  act,  and,  there- 
fore, where  the  money  is  paid  or  tendeited  there  is  no  ground 
for  interference  by  w^ay  of  specific  performance  or  injunction. 

§  128.  The  question  to  which  of  the  three  foregoing 
classes  of  contracts  any  particular  one  belongs  is,  of  course, 
a  question  of  construction.'  In  considering  it  "the  courts 
must,  in  all  cases,  look  for  their  guide  to  the  primary  inten- 
tion of  the  parties,  as  it  may  be  gathered  from  the  instru- 
ment upon  the  effect  of  which  they  are  to  decide,  and  for 
that  purjDose  to  ascertain  the  precise  nature  and  object  of 
the  obligation." (5)  Consequently  each  case  depends  on  its 
own  circumstances,  but  it  may  be  noticed  that  "a  court  of 
equity  is  in  general  anxious  to  treat  the  penalty  as  being 
merely  a  mode  of  securing  the  due  performance  of  the  act 
contracted  to  be  done,  and  not  as  a  sum  of  money  really  in- 
tended to  be  paid;"(^)  and  that,  "on  the  other  hand,  it  is 

(g)  33  Beav.,  328.  (s)  Roper  v.  Bartholomew,  12  Pri.,  821. 

(r)  Hobson  V.  Trevor,2  P.  Wms.lGl;  Chil-  (t)  Per  I>ord  Cranworth  in  Hanger  v.  Great 

liner  v.  Chilliner,  2  Ves.  Sen.,  528;  Clarkson  vvestern  Railway  Co.,  5  H.  L.  C,  W;  Astley 

V.  Edgp,  33  Beav.,  227.    "  The  form  of  mar-  v.  Weldon,  2  Bos.  &  P.,  346. 
riage  articles  by  bond  does  not  import  elec- 
tion."   Roper  V.  Bartholomew,  12  Pri.,  797. 

'  Ilacklett  V.  Alcott,  1  Call.,  583;  City  Bank  of  Baltimore  v.  Smith,  3  Gill  & 
John.,  265;  Moore  v.  Piatt  Co.,  8  ^NIo. ,  467.  The  intention  of  the  parties,  if  it 
can  be  ascertained,  must  govern  as  to  whether  the  sum  specified  is  to  be  regarded 
as  a  penalty,  or  as  liqi;idated  damages.  The  case,  however,  must  be  free  from 
fraud.  Durst  v  Swift,  11  Lexax,  273;  Cothreal  v.  Talmadge.  9  N.  Y.,  557; 
Bagley  v.  Peddie,  16  id..  409.  A  diflfereut  rule  is  held  in  Michigan.  See 
Jaquith  v.  Hudson,  5  Mich.,  123.  In  Iowa,  the  inclination  of  the  court  is  to 
regard  the  amount  named  as  a  penalty,  where  it  is  doubtful  what  the  parties 
really  intended.     Foley  v.  Keegan,  4  Iowa,  1. 


CONTRACTS   WITH   A   PENAL    SUM.  61 

certainlj^  open  to  parties  who  are  entering  into  contracts  to 
stipulate  that  on  faihire  to  perform  wliat  lias  been  aureed 
to  be  clone,  a  fixed  sum  shall  be  paid  by  way  of  compensa- 
tipn."(?^)' 

§  1"39.  On  this  question  it  is  by  no  means  conclusive  that 
the  contract  may  be  alternative  in  its  form,  for,  nevertheless, 
the  court  may  clearly  see  that  it  is  essentially  a  contract  to 
do  one  of  the  alternatives ;  so  that  where  there  was  a  con- 
tract to  renew  a  certain  lease,  with  an  addition  of  three  years 
to  the  original  term,  or  to  answer  the  want  thereof  in  dam- 
ages, the  court  decreed  specific  performance  of  the  lease, 

(u)  Ranger  v.  Great  Westera  Railway  Co.,  5  H.  L.  C,  04. 


'  The  legal  operation  of  a  penalty,  properly  so  called,  is  not  to  create  a  for- 
feiture of  the  entire  sum  named,  but  only  to  cover  the  actual  damaires  occa- 
sioned b}^  the  breach  of  contract ;  and,  therefore,  on  paj'ment  of  such  damages, 
or  in  the  case  of  a  bond,  of  the  principal  and  interest  actually  due,  the  party 
who  has  incurred  the  penalty  will  be  relieved  or  discharged  from  it.  But  in 
the  case  of  what  is  termed  liquidated  damages,  the  whole  of  the  precise  sum 
named  may  be  exacted  of  the  party  who  is  in  default,  and  the  court  will  not 
interfere  to  relieve  him  Burr.  Law  Diet.  The  theory  in  courts  of  equitv,  in 
granting  relief  in  cases  of  penalties,  treats  them  as  securities  for  the  conditions 
of  the  contract — as  a  means  of  securing  payment — and  it  is  only  on  tliis  ground 
that  relief  is  granted.  IFonbl.  Eq.  B.  1,  ch.  6,  g  4,  note  (A).  Peachy  v.  Duke  of 
Somerset,  Pre.  Ch.  568;  Skinner  v.  Dayton,  2  John.  Ch.,  535.  It  is  in  cases  of 
this  kind  only — that  is,  in  the  nature  o"f  a  security — that  a  court  of  equity  will 
ever  enforce  &  forfeiture.  "It  is  admitted,  indeed,"  says  Mr.  .lustice  Story, 
"  that  where  the  condition  or  forfeiture  is  merely  a  security  for  the  non-pay- 
ment of  money  (such  as  the  right  of  re-entry  upon  non-payment  of  rent),  there 
it  is  to  be  treated  as  a  mere  security,  and  in  the  nature  of  a  penalty,  ami  is  ac- 
cordingly relievable."  Hill  v.  Barclay,  18  Ves  ,  58;  Wadham  v.  Calcraft,  10 
id.,  68;  Reynolds  v.  Smith,  19  id.,  140.  But  if  the  forfeiture  arises  from  the 
breach  of  any  other  covenant  of  a  collateral  nature,  as,  for  example,  of  a  cov- 
enant to  repair,  there,  although  compensation  might  be  ascertained,  and  made 
upon  an  issue  quantum  damnijicatus,  yet  it  has  been  held  that  courts  of  equity 
ought  not  to  reUeve,  but  should  leave  the  parties  to  their  remedy  at  law.  Wad- 
ham  V.  Calcraft,  10  Ves.,  68;  Hill  v.  Barclay,  16  id.,  40:3;  S.  C.  18  id.,  59; 
Reynolds  v.  Pitt,  19  id.,  140;  Bracebridire  v.  Buckley,  2  Price's  R.,  200.  la 
England  it  is  held,  that  in  all  cases  of  forfeiture  for  the  breach  of  any  covenant, 
other  than  a  covenant  to  pay  rent,  no  relief  ought  to  be  granted,  in  ecpiity,  im- 
less  upon  the  ground  of  accident,  mistake,  fraud  or  surprise,  although  the 
breach  is  capable  of  a  just  compensation.  Eaton  v.  Lvon,  3  Ves.,  692:  Brace- 
bride  V.  Buckley,  2  Price's  R..  200:  Hill  v.  Barclay,  16  Ves..  403:  Rolf  v.  Harris, 
2  Price's  R.,  206;  White  v.  Warner.  2  Meriv.,  459;  Eden,  Injunc,  ch.  2.  p.  22. 
In  New  York  it  has  been  held  that  relief  will  not  be  granted  for  a  breach  of  a 
condition  contained  in  a  lease,  unless  the  forfeiture  was  incurred  through  acci- 
dent or  mistake,  for  which  compensation  can  be  made  to  the  other  party;  or 
where  the  forfeiture  is  in  the  nature  of  a  mere  security  for  the  payment  of 
money.  Baxter  v.  Lansing,  7  Pai^e,  350.  The  rule,  however,  was  formerly 
different.  Popham  v.  Bampfield,  1  Vern.,  33:  Havwards  v.  Angell.  1  i<l..  222: 
Northcote  v.  Dake,  Ambler's  R.,  513;  Sanders  v.  fope.  12  Ves.,  289.  Though 
the  distinction  is,  of  itself,  no  ground  to  support  a  bill  in  chancery,  yet  equity 
will  not  refuse  to  compel  performance  of  a  contract  in  the  form  of  a  penal  bond, 
on  the  ground  that  the  remedy  is  at  law.     Telfair  v.  Telfair,  2  Dessau,  271. 


62  FRY  ON  .SPECIFIC  PEIIFOKMAXCE  OF  CONTRACTS. 

the  second  alternative  only  expressing  what  the  law  would 
imply.  («y 

§  1 JIO.  The  largeness  or  smallness  of  the  sum  named  is  no 
reason  for  considering  it  a  mere  penalty,  unless  that  be  the 

(v)  Finch  v.  Earl  of  Salisbury,  Finch,  212. 

'  Neither  will  courts  of  equity  suffer  "their  jurisdiction  to  be  evaded,  merely 
by  the  fact  that  the  parties  have  called  a  sum  damages,  which  is,  in  fact  and  iu 
iuteut,  a  penalty;  or  because  they  have  designedly  used  language  and  inserted 
provisions  which  are  in  their  nature  penal,  and  j-et  have  endeavored  to  cover 
up  their  objects  under  other  disguises      The  principal  difficulty  in  cases  of  this 
sort,  is  to  ascertain  when  the  sum  stated  is,  in  fact,  designed  to  be  iu  nomine 
^At'/itf,  and  when  it  is  properly  designed  as  liquidated  damages."     Stor3-'s  Eq. 
Jur.,  lol8.     See  Watts  v.  Shepherd,  2  Ala.,  425.     It  is  said  iu  Owens  v.  Hodges, 
1  McMullan,  106,  that  where  a  party  to  a  contract  stipulates  to  perform  one  or 
more  things,  and,  iu  the  event  of  the  non-performance  of  any  or  all  of  them, 
agrees  to  pay  a  certain  sum,  the  sum  agreed  to  be  paid  will  be  regarded  as  a 
penalty,  and  not  as  liquidated  damages.     Where  a  large  sum  is  agreed  to  be 
paid  upon  the  non-payment  of  a  smaller,  or  the  non-performance  of  a  duty,  the 
damages  resultiug  from  which  may  be  ascertained  with  reasonable  certainty, 
and  which  is  much  less  than  the  sum  expressed,  that  sum  will  be  a  penalty. 
Watts  V   Shepherd,  2  Ala.,  425.     A.  engaged  by  bond  "in  the  full  and  just 
sum  of  .$500,  liquidated  damages,"  to  convey  to  B.  3,000  feet  of  land,  and  after- 
wards, on  B's  demand,  executed  a  deed  to  him,  conveying  a  lot  of  land  described 
by  metes  and  bounds.     B.  accepted  the  deed,  and  he  and  A.  agreed  that,  if  it 
was  not  right,  it  should  be  made  right.     It  was  afterwards  found,  upon  a  sur- 
vey of  the  land  conveyed,  that  it  contained  only  2513  feet.     Held,  in  a  suit  by 
B.  on  the  bond,  that  as  he  had  accepted  said  deed  in  part  performance  of  the 
bond,  the  sum  of  $500,  was  not  to  be  regarded  as  liquidated  damages,  but  that 
he  was  entitled  to  recover  only  the  actual  damages  which  he  had  sustained. 
Shute  y.  Taylor,  5  Mete,  61.     A.  agreed  to  do  a  piece  of  work  for  $758,  and 
gave  his  bond  with  sureties,  to  secure  the  performance  of  the  work,  in  the  sum 
of  $1,570,  "not  as  a  penalty  but  as  liquidated  damages."    Held,  that  such  sum 
was  to  be  considered  as  a  penalty,  and  not  as  liquidated  damages.     Moore  v. 
Platte  County,  8  Mis.,  467.     Where  it  was  agreed,  by  the  terms  of  the  contract, 
among  other  things,  that  one  party  should  give  to  the  other,  on  a  specified  day, 
a  promissory  note  for  $200,  and.  on  a  subsequent  day,  his  bond  and  mortgage 
for  $2,100,  and  that  if  either  party  should  fail  to  perform  the  contract  accord- 
ing to  the  instrument,  he  should  pay  to  the  other  $500  as  liquidated  damages, 
it  was  held  that  the  parties  gave  the  wrong  name  to  this  sum,  and  that  it  must 
be  regarded  as  a  penalty  and  not  as  liquidated  damages.    Lampmau  v.  Cochran, 
16  N.  Y.  (2  Smith),  275;  see  Foley  v  McKeegan,  4  Iowa,  1.     If,  by  the  agree- 
ment, it  is  doubtful  whether  the  parties  intended  that  the  sum  specified  should 
be  a  penalty  or  liquidated  damages,  courts  incline  to  treat  the  contract  as  cre- 
ating a  penalty  to  cover  the  damages  actually  sustained  by  one  breach,  and  not 
as  liquidated  damages.     Foley  v.  ]McKeegan,  4  Iowa,  1.     In  Cowan  v.  Gerrish, 
3  Shep  ,  273,  and  in  Durst  v.  Swift,  11  Texas,  273,  it  is  said  that  the  lawful  in- 
tention of  the  parties,  in  a  case  free  from  fraud,  where  it  can  be  ascertained, 
must  have  a  decisive  influence  in  determining  whether  the  sum  stated  in  the 
instrument  is  to  be  regarded  as  a  penalty      But,  on  the  other  hand,  it  is  held, 
in  Jaquith  v.  Hudson,  5  Mich.,  123,  that  the  real  question,  in  this  class  of  cases, 
is  not  what  the  parties  intended,  but  whether  the  sum  is  in  the  nature  of  a  pen- 
alty or  of  liquidated  damages — that  this  is  to  be  determined  by  the  magnitude 
of  the  sum  in  connection  with  the  subject-matter.     But  that  where,  from  the 
nature  of  the  contract,  the  subject-matter,  etc.,  the  actual  damages  from  a 
breach  are  uncertain  or  diflicult"  to  ascertain,  under  these  circumstances,  the 
parties  are  permitted  to  estimate  for  themselves,  and  provide  in  their  contract 
for  the  amount  to  be  paid  on  a  breach.     [Per  Christiancy,  J.]     Perhaps,  how- 
ever, the  true  doctrine  was  laid  down  in  Cotheal  v.  Talmadge,  5  Seld.  (N.  Y.), 
557.     Here  it  was  said  that  where  the  damages  resiilting  from  the  breach  of  aa 
agreement  would  be  very  uncertain,  and  evidence  of  ^heir  amount  very  diffl- 


CONTRACTS    AVITTT    A    rKXAI,    SUM.  63 

apparent  intention  ;(?o)  but  wliere  the  amount  of  tlie  penalty 
is  small,  as  compared  with  the  value  of  the  subject  of  the 
contract,  it  has  been  considered  a  reason  for  treating  the 
sum  reserved  as  a  mere*penalty.  and  not  in  tlie  nature  of  an 
alternative  contract. (.t) 

§  ISl.  In  a  case  where  a  man,  l)ein,t;-  veiy  uncertain  wliat 
estate  he  should  derive  from  his  father,  entered  into  a  bond 

(w)  Roy  V.  Duke  of  Beaufort,  2  Atk.,  190;    v.  Macale,  2  Dr.  &  War  ,  2(;9.    But  sec  Burne 
Astley  V.  Weldon,  2  Bos.  &  P.,  34C;  French    v.  Madden,  LI.  A:  U  .  t.  I'iunk  .  493. 

(X)  Chillliier  v.  Cldllincr,  J  Ves.  Sen.,  528. 

cult  to  obt.ain,  and  the  fair  import  of  the  agreeiiient  is  tliat  the  amount  named 
in  it  i.s  specified  and  agreed  ou  to  save  expen.se,  and  avoid  the  difliculty  of 
proving  tlie  actual  damage,  and  is  not  out  of  proportiim  t(j  the  jirobable  actual 
damage,  it  will  be  regarded  as  li<|uitlated  damages.  Thus,  in  Nobles  v.  Bates, 
7  Cow.,  307,  a  decision  in  accordance  with  the  English  case  of  Sainter  v.  Fer- 
guson, 7  C.  B.,  715,  where  N.  i.t  B.  dissolved  their  partnership  in  business,  and 
their  articles  of  dissolution  declared  one  object  of  the  (lis.solution  to  be,  tliat  N. 
should  relinquish  the  trade — that  B.  should  jiay  him  .s::{,()00,  in  various  install- 
ments, the  last  being  .s7r)0 — and  that  if  N.  should  set  ui)  the  business  within 
twenty  miles  of  their  furmcr  place  of  business,  he  should  forfeit  that  install- 
ment; held,  that  the  installment  of  !p750  must  be  considered  as  li(|uidated  dam- 
ages; and.  as  such,  to  be  forfeited  by  a  breach  of  the  condition  of  N.  Suther- 
land, J.,  in  delivering  the  opinion  of  the  court,  said:  •"The  parties  iiave  fixed 
the  value  of  that  item  in  the  consideration  at  .$700.  In  the  nature  of  the  case, 
the  precise  injury  which  the  defendant  would  sustain  from  the  establishmcut 
or  continuance  of  the  same  kind  of  business  could  not  be  accurately  ascertained. 
It  must  depend  upon  a  variety  of  circumstances;  upon  the  capital  which  the 
party  might  invest;  the  industry  which  he  might  exert;  and  the  patronage  from 
these,  and  other  causes,  he  might  be  able  to  attract."  In  Baglcy  v.  Pctldie,  16 
N.  Y.  [2  Smith],  469,  a  bond  declared  the  obligors  to  Ite  bound  in  the  sum  of 
$3,000  as  liquidated  damages,  and  not  by  way  of  i)enalty,  for  the  i>erformauce 
of  the  covenants  of  a  written  agreement.  One  of  the  covenants  was,  not  to  re- 
veal the  secrets  of  a  trade  in  which  the  i)rincipal  obligor  was  to  be  employed. 
It  was  held,  that  the  amount  of  damages  to  result  from  a  breach  of  this  stipu- 
lation of  the  agreement  was  so  uncertain  and  conjectural,  that  the  sum  named 
in  the  bond  should  be  considered  as  li(juidated  damages,  and  not  a  penalty, 
although  the  damages  of  the  actual  breach  were  certaiiu  The  following  cases 
were  also  held  to  be  those  of  liquidated  damages:  A  partv  agreed  to  convey  u 
tract  of  land  for  $1,200,  a  part  of  which  was  to  be  paid  down,  and  was  to  be 
received  as  part  of  the  consideration  money,  if  the  i)urchase  were  completed, 
or  of  the  damage,  if  the  contract  were  not  performed ;  and  he  also  covenanted, 
if  he  did  not  conform  to  his  agreement,  to  pay  .^oOO  as  forfeiture.  Chamber- 
lain V.  Bagley,  11  N.  H.,  2M.  A.  covenanted  with  B.  to  procure  and  deliver 
to  him,  within  a  limited  time,  the  certificate  of  third  persons  to  a  certain  etTect, 
and  stipulated  that  if  he  failed  to  do  so,  he  would  pay  him  .^-lOO  liiiuidated 
damages.  Hamilton  v.  Overton,  G  Blackf.,  20G.  Where  a  jKirty.  in  considera- 
tion of  having  conveyed  to  him  fourteen  city  lots  for  only  sj  1,000,  covmauted 
that  he  would,  by  a  certain  day,  erect  two  brick  houses,"  or  in  default  thereof 
pay  to  the  grantor,  on  demand,  the  sum  of  $4,000.  AVhere  the  plaintiffs  gave 
|;3,000  for  the  patronage  and  good  will  of  a  newspaper,  and  $500  for  the  type, 
etc.,  and  the  vendors  covenanted  that  they  would  not  ])ublisli  a  rival  paper,  etc., 
and  the  measure  of  damages  was  fixed  at  ^3,000.  Dakin  v.  Williams,  "2'i  Wend., 
201.  Where  the  parties  contract  mutually  to  do  certain  ai-ts  at  a  fixed  time, 
and  "respectively  bind  themselves  each  to  the  other  in  the  sum  of  $500.  for 
the  faithful  performance  of  the  several  agreements  herein  entered  into,"  the 
sum  is  not  to  be  considered  as  a  penalty.  (Jamnion  v.  Howe,  2  Shep..  250. 
Where  publishers  agree  to  sell  law  reports  to  all  applying  or  pay  $100  for  each 
refusal.     Little  v.  Banks,  85  N.  Y.,  258. 


64  FRY  OX  SPECIFIC  PERFORMATs^CE  OF  CONTRACTS. 

in  £5,000,  on  the  marriage  of  liis  daughter,  to  settle  one- 
tliird  of  such  i^roperty,  and  the  contract  so  to  settle  was 
recited  in  the  condition  of  the  bond,  it  was  specifically  per- 
formed in  full,  and  not  up  to  £5,000  only.(^)  "Such  agree- 
ment," said  Lord  Macclesfield,  (^)  "was  not  to  be  the  weaker 
but  the  stronger  for  the  penalty." 

§  13*3.  The  fact  that  the  benefit  of  the  contract  would 
result  to  one  person,  or  flow  in  one  channel,  and  the  benefit 
of  the  sum,  if  paid,  in  another,  is  a  strong  circumstance 
against  considering  the  contract  alternative  in  its  nature ; 
thus  where,  on  a  marriage,  the  husband's  father  gave  a  bond 
for  the  payment  of  £600  to  the  wife's  father,  his  executors 
or  administrators,  in  the  p)enalty  of  £1,200  if  he  did  not 
convey  certain  lands  for  the  benefit  of  the  husband  and 
wife  and  their  issue.  Lord  Hardwicke  held  that  the  obligor 
was  not  at  liberty  to  pay  the  £600,  or  settle  the  lands,  at  his 
election,  but  comjDelled  the  specific  performance  of  the  con- 
tract to  settle — partly  on  the  ground  that  the  £600  would 
not  have  gone  to  the  benefit  of  the  husband  and  wife  and 
their  issue,  but  of  the  wife' s  father  and  his  rei3resentativesj 
and  partly  that  the  lands  to  be  settled  were  worth  much 
more  than  £600.  (a) 

§  133.  Where  the  sum  reserved  is  single,  and  the  act 
stipulated  for  or  against  is  in  its  nature  continuing  or  recur- 
ring, as,  for  instance,  particular  modes  of  cultivating  a  farm, 
the  sum  will  be  considered  as  a  security  and  not  an  alterna- 
tive. (Z^) 

§  134.  On  the  other  hand  where  the  sum  or  sums  made 
payable  vary  in  frequency  of  payment  or  amount  according 
to  the  thing  to  be  done  or  abstained  from,  the  courts  have, 
in  many  cases,  found  that  the  payment  is  an  alternative. 

§  135.  In  Woodward  v.  Gyles  (c)  a  covenant  by  the  de- 
fendant not  to  plough  meadow  land,  and  if  he  did,  to  pay 
so  much. an  acre,  was  held  not  to  be  a  fit  case  for  an  injunc- 
tion restraining  the  ploughing ;  but  the  exact  form  of  the* 
covenant  does  not  appear.  "  If , "  said  Lord  St.  Leonards,  {d) 
"as  in  Woodward  v.  Gryles,(e)  and  Rolfe  v.  Peterson, (/) 

(j/)  Hobson  V.  Trevor,  2  P.  Wms.,  191.  And  see  Eoper  v.  Bartbolomew,  12  Pri.,  797. 
(Z)  3  P.  Wms.,  102^6th  ed.).  (c)  2  VernT,  119. 

(a)  ChilUner  v.  ChiUlner,  2  Ves.  Sen.,  528;       (d)  2  Dr.  &  War  ,  284. 
Roner  V.  Bartholomew,  12  Prl.,  797.  (e)  2  Vern.,  119 

(6)  French  v.  Macale,  2  Dr.  &  War.,  269.        C/)  2  Bro.  P.  C  ,  436 


CONTRACTS   WITH   A   PEXAL   SUM.  65 

there  is  evidence  of  intention  that  the  party  is  to  l)e  at 
liberty  to  do  tlie  act  if  he  choose  to  pay  the  increased  rent 
of  course  the  court  cannot  interfere,  because  this  court  never 
interferes  against  th^  exi^ress  contract  of  the  parties." 

§  136.  In  Rolfe  v.  Peterson  (r/)  the  question  was  whether 
the  payment  was  a  penalty  and  so  came  within  the  doctrine 
of  equitable  relief  against  penalties ;  but  of  it  Lord  Lough- 
borough said,  in  Hardy  v.  Martin  (7^) :  "  That  was  a  case  of 
demise  of  land  to  a  lessee  to  do  with  the  land  as  he  thouglit 
proper;  but  if  he  used  it  one  way  he  was  to  pay  one  rent 
and  if  another  way  another  rent."  Similarly,  a  covenant 
in  a  farm  lease  not  to  do  certain  things  "  under  an  increased 
rent  of,"  etc.,  was  held  to  give  the  tenant  the  right  to  do 
the  act  on  paying  the  increased  rent,(/)  and  a  contract  to 
renew  perpetually  "under  a  penalty  of  £70,"  was  held 
alternative,  (y) 

§  137.  But  where,  in  addition  to  the  increased  rent,  there 
is  a  stipulation  that  the  act  provided  against  shall  be  a  for- 
feiture of  the  covenantors  interest,  the  sum  is  held  to  be  a 
security  only  and  not  an  alternative  ;  and  consequently  the 
court  would  restrain  the  doing  of  the  act  \{k)  and,  of  course, 
the  usual  form  of  lease  giving  the  lessor  the  right  to  re-enter 
and  avoid  the  lease  on  breach  of  covenant  offers  no  impedi- 
ment to  the  enforcement  of  the  covenants  specilicallj'-.(7) 

§  138.  Where  the  contract  would  be  unreasonable  unless 
It  gives  an  option  to  the  person  stipidating  to  pay  the  sum, 
this  will  be  a  strong  circumstance  for  treating  the  contract 
as  alternative.  So  where  a  lady,  administratrix  of  her  hus- 
band, covenanted,  under  a  penalty  of  £70,  to  renew  a  sub- 
lease as  often  as  she  obtained  a  renewal  of  the  head-lease, 
and  it  appeared  that  the  lines  on  the  head-lease  were  raised 
on  renewal,  according  to  the  then  vahie  of  the  property,  so 
as  to  render  her  covenant  unreasonable  except  upon  the 
construction  of  its  giving  her  an  option,  the  House  of  Lords 
treated  the  contract  as  alternative.  (7/^^) 

ig)  2  Bro.  P.  C.,  43G.  0)  Magrane  v.  Archbold,  1  Dow,  107. 

(h)  1  Cox,  26.  (k)  Barret  v.  Blagravc,  5  Ves.,  555,  as  ex- 

(i)  2  Legh  V.  Linie,(>  H.  &  N.,165:  OW.  R.,    plained  hv  Lord  St.  I.eonards  in  French  v. 


55;  30  L.  J.  Ex.,  25.    And  see  Hurst  v.  Hurst,    Macale,  2  Dr.  &  War.,  2T8-y 

4  Ex.,  571 ;  Gerrard  v.  O'Reilly,  3  Dr.  &  War.,        (/)  Dyke  v.  Taylor,  3  Do  (i.  t.  jc  j .. 

4l4.  (7/t)  Magrane  v.  Archbyld,  1  Dow,  10 


66  FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 


PART    11. 

PARTIES  TO  THE  ACTION. 


CHAPTER  I. 

OF    THE    GENERAL    RULE. 

§  139.  Ill  considering  the  subject  of  this  chapter  it  will 
be  convenient  to  treat  separately  (1)  of  the  rules  formerly 
aiDplicable  to  suits  for  specific  performance  in  the  court  of 
chancery,  and  (2)  of  the  rules  now  applicable  to  like  actions 
in  the  high  court  constituted  by  the  judicature  act,  1873. 
It  is  not  yet  possible  to  neglect  the  old  i^ractice,  as  it  will 
no  doubt  be  appealed  to,  from  time  to  time,  as  assisting  to 
guide  the  court  under  the  new  jDractice. 

1.  As  to  tlie  former  iDractice  of  the  court  of  cliancery. 
§  140.  The  general  rule  with  regard  to  suits  to  enforce 
contracts  was  that  the  parties  to  the  contract,  or  their  rej^re- 
sentatives,  were  the  necessary  and  sufficient  parties  to  the 
suit — that  all  the  parties  to  the  contract  should  be  parties 
to  the  suit  and  no  one  else.(<x)'  The  contract  is  what  con- 
stitutes the  rights  and  regulates  the  liabilities  of  the  X3arties  ; 
in  a  stranger  there  is  no  liability ;  and  against  him,  there- 
fore, there  was  no  more  right  to  enforce  specific  performance 
in  equity  than  to  recover  damages  at  law.  (5) 

(a)  Mole  V.   Smith,  Jac,  490;    Tasker   v.  Lumley  v.  Timms,  21  W.  R.,  319;  S.  C,  Id., 

Small,  3  My.  &Cr.,  63,  69;  Wood  v.  White,  4  494;  HaUfax   Joint   Stock    Banking   Co.  v. 

id.,  460,  483;  Humphreys  v.  Hollis,  Jac  ,  73;  Sowerby  Bridge  Town  Hall  Co.,  25  Sol.  Jo., 

Patterson  v.  Long,  5  Beav.,  186;  Peacock  v.  450;  W.  N.,  1881,  65. 

Penson,  11  id.,  355;  Bishop  of  Winchester  v.  (b)  Hare  v.  London  and  North  Western 

Mid-Hants  Railway  Co.,  L.  R.  5  Eq.,  17,  21";  Railway,  1  J.  &  H.,  252. 

'  McKee  v.  Beal,  3  Lilt.  (Ky.).  190;  McWherter  v.  McMahon,  1  Clark  (N.  Y.), 
400.  A  party  sold  land  which  had  been  decreed  to  him.  Held,  that  the  pur- 
chaser might  compel  a  conveyance  to  himself  by  an  original  bill.  Respass  v. 
McClanahan,  2  A.  K.  Marsh,  577. 


GENERAL   RULE.  67 

§  141.  It  made  no  difference,  that  tlie  stranger  to  the 
contract  might  be  a  necessary  party  to  the  conveyance,  as  a 
judgment  creditor,  or  a  legal  or  equitable  mortgagee,  or  a 
person  interested  in  the  equity  of  redemption. (c)  In  Tasker 
V.  Small  (rZ)'  the  bill  was  tiled  by  the  purchaser  of  an  equity 
of  redemption  against  the  vendors,  and  PhiUips,  the  first 
mortgagee,  was  made  a  defendant  on  the  ground  that  the 
legal  estate  being  vested  in  him  he  refused  to  convey  with- 
out having  competent  authority  for  so  doing.  Lord  Cotten- 
ham,  however,  said,((?)  "Phillips  is  merely  a  mortgagee 
against  whom  no  bill  can  properly  be  filed  except  for  the 
purpose  of  redeeming  his  mortgage,  and  that  by  a  party 
entitled  to  redeem.  This  bill  does  not  pray  any  redenqjtion 
of  Phillips'  mortgage,  and  if  it  had,  the  plaintiff  would  not 
be  entitled  to  file  such  a  bill.  He  is  only  connected  with 
the  property  by  having  contracted  to  purchase  the  equity 
of  redemption,  and  until  that  purchase  is  completed,  he 
cannot  redeem  the  mortgage.  Phillips  has  no  interest  in 
the  siDecific  performance  of  the  contract ;  he  is  no  part}'  to 
it,  and  the  performance  •  of  it  cannot  affect  his  security 
or  interfere  with  his  remedies."  '' 

§  142.  Where  the  o^^iier  of  land  contracted  to  grant  a 
lease  to  A.  and  then  mortgaged  the  land  to  B.  with  notice 
of  the  contract,  and  B.  did  not  dispute  A.'s  right  to  the 

(c)  Tasker  v.  Small,  tebi  sup.,  overruling  Hosp.  v.  Westminster  Imp.  Comms.,  1  De  G. 

S.  (J.,  G  Sim,,  625.  C36;  cf.  Sober  v.  Kemp,  6  &  J.,  531;  Hall  v.  Laver,  3  Y.  &  C.  Ex.,  191. 

Ha.,  155  (a  mixed  case  of  specific  ))erform-  As  to  whether  there  was  any  difference  in 

ance  and  foreclosure).    See,  also,  Petre  v.  that  respect  between  suits  to  rescind  and 

Buncombe,  7  Ha,  24  (a  purchaser's  bill),  and  suits  to  enforce   contracts,  see  Aberaman 

Lord  Leigh  v   Lord  Ashburton,  11  Beav.,4"0  Ironworks  v   Wlckens,  L.  K.  4  Ch.,  101,  111, 

(a  vendor's  bill),  from  which  it  appears  that  and  Fenwick  v.  Bulroan,  L.  H.  0  Eq.,  165. 

judgment  creditors,  though  not  necessary,  (d)  6  Sim  ,  6-25;  3  My.  &Cr.,63. 

might  be  proper  parties.   See,  also,  Greycoat  («)   3  My.  &  Cr.,  69. 

'  The  rule  as  laid  down  in  Tasker  v.  Small,  3  My.  &,  Cr.,  appears  to  be,  that 
parties  for  whose  benefit  a  contract  was  not  made,  and  who  were  not  parties  or 
privies  to  it,  could  not  a.sk  for  a  specific  performance  of  the  same.  This  was 
lield  in  Beardsley  Scythe  Co.  v.  Foster,  36  N.  Y.,  561 ;  and  Bagott  v.  "Wetmore, 
17  N.  J.  Eq.,  250.  Where  a  general  creditor  has  not  obtained  judgment,  and 
one  who  has  no  special  claim  upon  the  property  of  his  debtor — Held,  that  he 
had  no  right  to  call  for  the  specific  execution  or  rescission  of  the  debtor's  con- 
tracts for  his  own  benefit.     Griflith  v.  Frederick  Co.  Bank,  6  Gill  &  John.,  424. 

'  Rule  as  (o  parties.]  The  rule  appears  to  be  that  the  remedy  in  "equity  shall 
either  be  between  the  parties  who  stipulated  what  should  be  done,  or  those 
standing  in  their  place.  Burgess  v.  Wheate,  1  W.  Bl.,  12!).  Where,  before  the 
commencement  of  the  action,  a  partial  assignment  of  the  complainant's  inter- 
est to  a  person  who  did  not  join  in  the  bill— Held,  no  defense.  AVillard  v.  Tay- 
lor, 8  Wall.,  557;  Levy  v.  Brush,  8  Abb.  Pr.  (N.  S.),  418. 


68  FEY  ON  SPECIFIC  PERFORMAKCE  OF  CONTRACTS. 

lease,  it  was  held  that  B.  was  not  a  proper  party  to  a  suit 
by  A.  for  specific  performance.  (/) 

§  143.  xVnd  so  where  a  steward  was  made  a  party  as 
being  receiver  of  the  rents,  and  having  the  title-deeds  in  his 
possession,  the  bill  was  dismissed  as  against  him.((7)  And 
in  a  suit  to  enforce  a  contract  made  by  a  mortgagee  under  a 
power  of  sale,  the  mortgagor  was  not  a  necessary  party;(^)' 

/  /-x  T  ««,r  -r  Tinwrine-  ■?■?  Beav    585  589.             (.h)  Corder  v.  Morgan,  18  Ves.,  344;  Ford  v. 
^/ MaKinra%   fN^mS'Ji  VesT          Heely  (Stuart.  V    C.).  3  Jur.  (N.  S.).  1116; 
A^d  6^e  ?Sn  vTBradshaw.'  15  Sim..  192;    Clay  v.  Sharpe.  18  Ves..  346.  n. 
10  Jur..  402.  

1  All  persons  materially  interested  in  the  subject  of  the  suit,  ought  to  be 
made  parties  either  as  plaintifE  or  defendant,  in  order  to  prevent  a  multiplicity 
of  suits  and  that  there  may  be  a  complete  and  final  decree  between  the  parties 
interested  And  this  rule  is  restricted  to  parties  whose  interests  are  involved 
in  the  issue  and  to  be  affected  by  the  decree.  And  the  rehef  granted  will 
always  be  so  modified  as  not  to  afi-ect  the  interests  of  others.     Mecaanics  B  k 

V  Sevton  1  Pet.  299;Hussey  v.  Dole,  24  Me.,  20;  McConnell  v.  McConnell, 
li  Verm.'  290-  Noyes  v.  Sawyer,  3  id.,  160;  Crocker  v.  Higgins,  7  Conn  342; 
New  London  B'k  v.  Lee,  11  id.,  112;  Hawley  v.  Cramer,  4  Cow    717;  Oliver 

V  Palmer  11  GiU.  &  John.,  476:  Clark  v.  Long,  4  Rand.,  451;  Vaum  v.  Hag- 
gett.  3  DeV.  &  Bat.  31;  Frazer  v.  Legare,  1   Bailey's  Cli.     389;  Lucas  v  Bk 
of  Darien  2  Stew.,  280;  Park  v.  Balentine,  6  Blackf.,  223;  Caldwell  v.  Tag- 
gart  4  Pet    190.     A  person  for  whose  benefit  an  agreement  is  made,  though 
not  a  party 'to  such  agreement,  may  maintain  a  suit  in  chancery  for  a  specific 
performance.     In  a  suit  to  set  aside  a  judgment  in  the  name  of  a  sheriff  upon  a 
replevin  bond,  the  sheriff  should  be  made  a  party,  though  he  has  no  personal 
interest  in  the  suit.     Campbell  v.  Weston,  8  Paige,  124.     In  Michigan,  where 
an  officer  has  an  execution  in  his  hands,  still  in  force,  he  is  a  necessary  party 
to  a  bill  which  seeks  to  restrain  proceedings  on  it.     Bumpee  v.  Smith,  Walk. 
Ch    327     In  Alabama  and  Illinois,  the  rule  is  the  reverse.    Shrader  v.  Walker, 
8  Ala.   244.     Lackay  v.  Curtis,  6  Ired.  Ch.,  199.     Where  a  person  is  interested 
in  the 'matter  of  a  bill  as  executor,  and  also  as  devisee,  he  should  be  made  a 
party  in  both  capacities;  and  it  is  not  sufficient  to  make  him  a  party  as  execu- 
tor and  to  call  upon  him  to  answer  as  such.     Mayo  v.  Tompkins,  6  Mumf., 
520.     A  partner  of  a  complainant  and  joint  obligor  on  notes  given  in  the  course 
of  various  mercantile  transactions,  which  the  bill  is  brought  to  settle,  must  be 
made  a  party  to  the  bill.     Dozier  v.  Edwards,  3  Litt.,  67.     Where  it  appeared 
from  the  bill  that  a  party  defendant  had  had  an  interest  in  the  subject-matter, 
and  it  did  not  appear  clearly  that  he  had  parted  with  all  that  interest,  an  ex- 
ception to  his  being  made  a  party  taken  under  a  general  demurrer  to  the  bill, 
was  held  not  to  be  sustainable.     Craire  v.  Demiug,  7  Conn.,  387.     And  where, 
in  the  progress  of  a  suit,  a  third  party  is  found  to  be  interested,  he  should  be 
made  a  party.     Carman  v.  Watson,  1  How.  (Miss.),  334.     Where  to  grant  the 
prayer  of  a  bill  in  equity  will  affect  the  duties  of  receivers  of  a  corporation, 
they  should  be  made  parties.     Smith  v.  Trenton  and  Delaware  Falls  Co., 
Greens's  Ch.,  505.     And  in  a  suit  against  the  trustees  of  an  incorporated  re- 
ligious society,  to  prevent  them  from  ejecting  the  clergyman  from  the  tempor- 
alities and  from  the  pulpit,  it  seems  the  church  corporation  should  be  made  a 
party.     Lawyer  v.  Cipperly,  7  Paige,  281.     As  to  who  must  not  be  made  par- 
ties, it  may  be  said,  that  a  person  with  uo  interest  in  the  cause,  who  might  be 
examined  as  a  witness,  cannot  be  made  a  party.     Reeves  v.  Adams,  2  Dev.  Ch., 
192.     And  a  person  having  merely  a  contingent  interest  in  the  suit,  cannot  be 
made  a  party  htigant.     Reed  v.  Vanderheyden,  5  Cow.,  719;  Baker  v.  Rowan, 
2  Stew,  cfc  Port.,  317;  Barbour  v.   Whitlock,    4  Monr.,  180.     And  where  a 
party  commenced  a  suit  as  one  of  the  next  of  kin  of  a  decedent,  and  after- 
wards became  disinterested  in  consequence  of  the  birth  of  a  posthumous  child, 
it  was  held  that  he  could  not  appeal  from  the  decree  in  the  cause.    Id.     As  to 


gejSteral  rule.  69 

unless  the  purchaser  had  notice  that  the  mortgagor  disputed 
the  validity  of  the  sale.(/) 

§  144.  In  a  case  before  Shad  well,  V.  C,  where  the  vendor 
sold  the  same  property  twice  over  and  the  bill  was  brought 
by  the  first  purchaser  against  the  vendor  and  the  second 
purchaser,  it  was  dismissed  (without  costs)  as  against  the 
latter,  though  specific  performance  was  decreed  as  against 
the  original  contractor  ;  {j)  this  was  affirmed  by  Lord  Lynd- 
hurst  after  two  arguments;  and  Turner,  L.  J.,  laid  down 
the  same  doctrine,  (/t) 

§  145.  Again,  where  two  houses  held  under  one  lease 
w^ere  sold  in  separate  lots  at  the  same  auction,  and  it  was 
stipulated  that  each  purchaser  should  be  a  party  to  the 
other's  assignment,  it  was  held  that  the  purchaser  of  lot 
two  was  not  a  necessary  party  to  a  suit  to  enforce  the  con- 
tract with  the  purchaser  of  lot  one.(Z)  And  a  bill  by  a  jour- 
chaser  for  specific  performance  could  not  be  sustained 
against  i^arties  to  a  previous  contract  to  sell  the  same  land 
which  the  bill  impeached,  (w) 

(i)  Anon.,  6  Mad.  See  Jenkins  v.  Jones,  2  (k)  Chadwlck  v.  Maden,  9  Ha.,  188. 
Giff.,  99;  Dance  v  Goldingham,  L.  R.  8  Ch.,  (I)  Paterson  v.  Long,  5  Beav.,  186. 
902.    But  see  Clay  v.  Sharpe,  18  Ves  ,  846,  n.        (m)  De  Hoghton  v.  Money,  L.  R.  1  Eq.,  164; 

0')  Cutis  V.  Thodey,  1  Coll.,  212,  223.    See  affirmed,  id.,  2  Ch.,  164. 
too  Anon  v.  Walford,  4  Buss.,  372. 

who  need  not  be  made  parties,  it  has  been  held  that  where  a  bill  contains  an 
allegation  that  a  person  is  out  of  the  State,  such  absent  person  need  not  be  made 
a  party.  Spivey  v.  Jenkins,  1  Ired.  Ch.,  126.  But  see  Russell  v.  Clark,  7 
Cranch,  69.  On  account  of  the  limited  and  peculiar  jurisdiction  of  the  United 
States  courts,  if  an  equity  cause  may  be  proceeded  in  to  a  final  decree  between 
the  parties  to  it,  without  making  others  parties,  who  would  generall}'  be  con- 
sidered necessary  parties,  they  need  not  be  made  parties  where  the  process  of 
the  court  cannot  reach  them,  or  where  they  are  citizens  of  another  State.  3Ial- 
low  V.  Hinde,  12  Wheat.,  193.  Although  if  a  final  decree  between  the  litigat- 
ing parties,  will  necessarily  affect  the  right  of  those  who  are  absent,  the 
peculiarity  of  the  jurisdiction  of  the  court  will  not  authorize  the  dispensing 
with  them.  Id.  But  it  seems  that  the  court  might,  in  the  case  of  an  injunc- 
tion bill,  retain  jurisdiction  of  the  parties  regularly  before  it,  until  the  plain- 
tiffs could  have  an  ojiportunity  to  contest  the  claims  of  the  other  parties,  in  a 
competent  tribunal ;  and  if  it  is  there  made  to  appear  by  the  judgment  of  such 
tribunal  that  the  complainants  are  entitled  to  the  interest  claimed  by  such  other 
parties,  the  court  may  proceed  to  a  final  decree.  Id  Where  a  person  cannot, 
by  the  laws  of  the  United  States,  be  made  a  party  to  a  bill,  on  account  of  his 
residence  in  another  State,  he  need  not  be  made  aparty  to  such  bill,  though,  if 
within  the  jurisdiction  of  the  court,  he  would  be  a  necessjiry  party.  Joy  v. 
Wirtz,  1  W.  C.  R.,  517.  Where  a  decree,  in  relation  to  the  subject-matter  of 
litigation,  can  be  made  without  a  person  having  his  interest  in  any  way  con- 
cluded by  the  decree,  he  is  not  an  essential  party.  Among  this  class  of  cases, 
are  suits  brought  by  part  of  a  privateer's  crew  for  prize  money ;  suits  by  cred- 
itors .seeking  an  account  of  their  deceased  debtor's  estate;  legatees'  suits  against 
executors;  and  actions  brought  b}*  a  few  members  of  a  society  for  the  benefit 
of  all.     Story  v.  Livingston,  13  Pet.,  359. 


/' 


70  FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 


§  146.  In  connection  with  the  question  under  considera- 
tion it  may  be  noticed  that  a  direction  in  an  order  that  A. 
should  c<^iivey  included  in  effect  mortgagees  and  all  other 
necessary  conveying  parties,  and  the  omission  of  the  words 
commonly  inserted  that  A.  "and  all  other  necessary  parties 
if  any  ''  should  convey  was  immaterial.  («) 

§  147.  Where  the  suit  sought  other  relief  than,  that  in 
specitic  performance,  though  all  arising  from  a  contract,  the 
court  might  requii'e  the  presence  of  other  parties.  To  this 
proposition  the  following  case  may  be  referred.  A  railway 
company  had  been  let  into  possession  of  some  land  agreed 
to  be  purchased,  and  had  agreed  to  demise  the  railway  to 
another  company,  and  had  let  such  other  company  into  pos- 
session, but  had  not  paid  the  purchase-money  of  the  land  ; 
the  vendors  of  the  land  filed  a  bill  for  specific  performance 
of  the  contract,  payment  of  the  purchase-money,  and  an  in- 
junction to  restrain  the  companies  from  continuing  in  j)os- 
session  of  the  land,  for  enforcing  the  vendors'  lien  for  unpaid 
purchase  money,  for  a  receiver,  and  damages.  The  lessees, 
whose  possession  the  plaintifl:  sought  to  disturb,  were  held 
proper  parties,  (o) 

§  148.  On  the  other  hand,  the  general  principle  under 
discussion  was  strongly  illustrated  by  the  case  of  Robertson 
V.  The  Great  Western  Railway  Company.  (_??)  The  plaintiff 
had  agreed  to  sell  to  the  defendants  a  piece  of  land,  and  to 
buy  up  the  right  then  vested  in  his  tenant ;  the  defendants 
having  entered  before  payment  of  the  purchase-mone3^  they 
were  served  with  notices  not  to  trespass  on  the  land  both  by 
the  plaintiff  and  his  tenant.  The  plaintiff  then  brought  his 
bill  for  a  specific  performance  and  to  restrain  the  trespass, 
to  which  the  defendants  demurred,  on  the  ground  that  the 
tenant  was  not  a  party.  Shadwell,  V.  C,  allowed  the  demur- 
rer, considering  that  two  i^ersons  being  affected  by  the  injury 
the  court  must  have  them  both  before  it ;  but  the  demurrer 
was  overruled  by  Lord  Cottenham  on  the  grounds  that  the 
object  of  the  suit  was  a  specific  performance,  and  that  the 
company  might  be  restrained  from  entering  without  pay- 
ment of  the  purchase-money,  whether  that  entry  did  or  did 

(n)  Minton  V.  Kirwood,  L.  R.  3  Ch.,  614.         v.  Watford,  etc.,  Railway  Co.,  36  Id.,  Oh..  379; 
(o)  Bishop  of  Winchester   v.    Mid-Hants    Cogens  v.  BoKiior  Railway  Co..  Id,  1  Ch.,  594. 
Railway  Co.,  L.  R.  5  Eq.,  17.    See  Sedgwick       (p)  1  Rail.  C.  459;  8.  C  ,  10  Sim.,  314. 


GENEKAL   RULE,  71 

not  affect  the  tenant ;  and  that  to  say  tliat  tlie  plaintiff  could 
not  so  restrain  the  company  without  bringing-  the  tenant 
before  the  court  would  be  to  exclude  the  jurisdiction  of  the 
court. 

§  149.  In  the  court  of  chancery  persons  having  adverse 
or  inconsistent  rights  in  the  subject-matter  of  the  suit  could 
not  be  joined  as  plaintiffs  \{q)  nor  could  a  person  who  had 
no  interest  be  joined  as  plaintiff  with  one  who  had.(r)'     The 

(?)  Fulham  v.  M'Carthy,  1  H.  L.  C,  703;  (r)  S.  C.  and  per  Lord  Lyndhurst  in  King 
Padwick  V.  Piatt,  11  Beav.,  503.  of  Spain  v.  Machado.  4  Russ.,  -240.    See,  also, 

Pearce  v.  Watkins,  16  Jur.,83'2. 

'  Parties  having  conflicting  interests  in  the  subject  of  litigation  should  not 
be  joined  as  plaintiffs  in  the  suit;  and  in  a  suit  by  the  husband  to  set  aside  a 
conveyance  in  trust,  for  the  use  of  his  wife  and  her  children,  the  wife  should 
be  made  defendant.  Grant  v.  Schoonhoveu,  9  Paige,  225.  But  where  all  per- 
sons have  the  same  interest,  they  should  be  placed  on  the  .same  side  of  the  suit. 
If  any  refuse  to  appear  as  plaintiffs,  they  may  be  made  defendants,  their  refusal 
being  stated  in  the  bill.  Contee  v.  Dawson,  2  Bland,  2G4:  Payson  v.  Owen,  3 
Des.,  31;  Cook  v.  Hadley,  Cooke,  465;  Morse  v.  Hovey,  9  Paige,  197.  A  re- 
fusal to  be  joined  as  co-complainants  was  inferred,  where  the  assignees  of  a 
party  who  had  become  insolvent,  were  made  defendants  in  a  bill  of  revivor, 
putting  in  their  answer  as  such  and  making  no  objections  to  that  character. 
Osgood  V.  Franklin,  2  John.  Ch.,  1.  A  mis-joinder  of  complaints  .seems  to  be 
an  error  fatal  to  the  validity  of  a  bill.  "It  is  well  settled,"  says  Vice  Chancel- 
lor McCoun,  in  Clayson  v.  Lawrence,  3  Edw.  Ch.,  53,  "to  be  a  sufficient 
ground  for  dismissing  a  bill,  that  a  person  is  joined  as  co-complaluant,  who  has 
no  interest  in  the  matters  of  the  suit,  and  no  right  to  sue;  and  the  objection 
may  be  taken  by  demurrer  or  raised  bv  plea,  as  the  case  may  l)e."  Clarkson  v. 
De'Pey.ster,  3  Paige,  337;  Bowie  v.  Mlnter,  2  Ala.,  40G.  But  it  is  held,  in  Bug- 
bee  V.  Sargent,  23"Me.,  269,  that  the  mi.s-joinder  of  parties  defendant  is  not  a 
sufficient  cause  for  the  dismissal  of  a  bill,  as  it  respects  other  parties  than  those 
improperly  joined.  But  a  non-joinder  of  proper  parties  will  not  oust  the  court 
of  its  jurisdiction.  Wormlev  v.  Wormlev.  8  Wheat.,  421;  Milligan  v.  Milledge, 
3  Cranch,  220;  Na.sh  v.  Sm"ith,  6  Conn. ,'421 ;  Singleton  v.  Gayle.  8  Porter,  270. 
Although,  in  some  cases,  a  bill  may  be  dismissed  without  prejudice,  and  with- 
out precluding  the  right  of  the  complainants  to  l)ring  a  new  l)ill  in  amended 
form.  Mims  v.  Minis.  3  J.  J.  Marsh.,  103;  liowland  v.  Garman,  1  id.,  7C; 
Marry  v.  Rogers,  2  Bibb.,  314.  The  proper  course,  where  there  is  a  want  of 
parties,  is  to  order  the  case  to  stand  over,  to  enable  the  plaintiff  to  join  the 
proper  parties.  But,  though  the  want  of  necessary  parties  to  a  bill  is  not 
ground  for  dismissal  in  the  first  instance,  yet,  if  the  complainant  neglects  or 
refuses  to  make  the  necessary  parties,  after  objection  made,  the  bill  will  be 
dismissed.  Singleton  v.  Gale'  8  Porter,  270;  Greenleaf  v.  Green,  1  Pet..  138. 
Thus,  in  Thompson  v  Clay,  1  J.  J.  Marsh,  413,  where  the  circuit  court  dis- 
missed a  bill  absolutely,  where  some  of  the  necessary  parties  were  not  before 
the  court:  on  error  to  the  Court  of  Appeals,  it  was  held,  that  the  cause  should 
be  remanded,  the  complainant  to  have  leave  to  bring  in  the  proper  parties,  and 
then,  that  such  a  decree  as  might  be  just  be  rendered;  but  if  the  complainant 
failed  to  make  the  neces-sary  parties,  that  the  bill  should  be  dismissed  witliout 
prejudice.  Where  a  defendant,  who  is  a  necessary  party  to  a  l)ill.  refu.*ies  to 
appear,  and  the  court  has  no  power  to  compel  him  to  apjiear,  the  bill  will  be 
dismissed  on  motion  of  the  co-defendants.  Picynet  v.  Swan.  5  Mason.  561. 
Where  the  parties  in  interest  are  so  numerous  as  to  render  it  inconvenient,  if 
not  impracticable,  to  make  them  all  defendants,  without  great  delay  and  ex- 
pense, and  justice  can  be  done  between  the  parties  before  the  court  without 
affecting  the  interests  of  the  others,  the  court  will  proceed  to  decree,  notwith- 
standing the  want  of  parties.     Boisgerard  v.  Wall.  1  S.  ct  M.  Ch..  404.     And 


72  FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

importance  of  the  doctrine  of  misjoinder  was,  however, 
diminished  by  the  forty-ninth  section  of  the  chancery  pro- 
cedure act,  1852.(5)  In  some  cases,  persons  claiming  ad- 
versely might  be  made  defendants.  (^) 

§  150.  To  the  general  rule  above  stated(^)  it  will  be  found 
that  many  exceptions  arose  ;  some  of  these  will  be  noticed 
in  the  subsequent  chapters  in  this  part.  But  there  are  other 
exceptions,  or  apparent  exceptions,  to  the  strict  rule,  which 
may  well  be  stated  here. 

§  151.  One  case  where  the  parties  to  the  original  contract 
were  not  those  to  the  suit  was,  where  there  had  been  a  nova- 
tion or  new  contract  substituted  for  the  original  one  by  the 
intervention  of  a  new  person ;  in  which  case  the  party  in 
whose  place  the  new  person  was  introduced,  being  no  longer 
a  party  to  the  contract,  ceased  to  be  a  proper  party  to  the 
suit,  and  it  had  to  be  carried  on  between  the  parties  to  the 
new  contract.  Thus,  where  A.  agrees  to  sell  to  B.,  and,  be- 
fore completion,  B.  contracts  to  sell  to  C,  and  A.  accepts  C. 
as  the  purchaser,  this  may  amount  to  a  new  contract ;  and 
even  where  it  did  not  strictly  do  so,  B.  might  be  an  unneces- 
sary party  to  the  suit.(?)) 

§  152.  One  of  the  most  remarkable  instances  of  novation 
occurs  in  sales  on  and  is  the  result  of  the  custom  of  the 
stock  exchange.  The  vendor's  broker  sells  shares  to  a  job- 
ber, the  jobber  sells  to  another  broker,  or  to  several  brokers 
of  several  purchasers,  and  at  last  the  name  of  the  ultimate 
purchaser  of  the  shares  is  handed  in  by  his  broker  on  the 
''name  day"  and  comes  finally  to  the  vendor's  broker ;  the 
transfer  is  made  by  the  original  vendor  to  the  ultimate  pur- 
chaser, and  all  intermediate  sales,  although  they  may  be 
numerous,  are  eliminated,  and  by  novation  the  only  con- 
es) 15  and  16  Vict,  ch.  86;  and  see  now  Laver,  3  Y  &  C.  Ex.,  191;  Shaw  v.  Fisher,  5 
infra,  §  168.  De  G.  M.    &  G.,  596.    And    see   Stanley  v. 

(0  See  infra,  §  168  et  seq.  Chester  and  Birkenhead  Railway  Co.,  9  Sim., 

(w)  Supra,  §  140.  264;  3  My.  &  Or.,  773.    See,  also,  infra,  §  1018 

(»)  Holden  v.  Hayn,  1  Mer.,  47;  Hall  v.    et  seq.,  as  to  Novation. 

the  court  will  generally  dispense  with  a  proper  party,  provided  the  cause  be 
stated  in  the  bill.  Breese,  124.  The  proper  time  for  taking  an  objection  for 
want  of  parties,  is  upon  opening  the  pleadings,  and  before  the  merits  are  dis- 
cussed. Jones  V.  Jones,  3  Atk.,  Ill;  Darwent  v.  AValtou,  2  Atk.,  510;  Me- 
chanics' Bank  v.  Sej'ton,  1  Pet.,  399;  Story  v.  Livingston,  13  id.,  359.  But  it 
frequently  happens  after  a  case  has  been  gone  into  and  thoroughly  heard,  the 
court  has  felt  itself  compelled  to  let  it  stand  over  for  the  purpose  of  amend- 
ment.    Jones  V.  Jones,  3  Atk.,  111. 


GENERAL   RULE.  73 

tract  left  standing  is  between  the  first  vendor  and  the  last 
purchaser,  (to) 

§  153.  Tliere  are  certain  cases  in  which  A.  contracts  witli 
B.  for  the  benefit  of  C,  and  C.  can  sue  on  the  contract. 
These  will  be  considered  in  the  next  chapter. 

§  154.  Another  exception  arose  from  the  existence  of  an 
interest  in  the  estate  bought  or  the  money  paid  derived  from 
a  contract  anterior  to  the  contract  for  sale.  In  these  cases 
the  iDerson  thus  interested  in  the  fruit  of  the  contract  appears 
to  have  been  a  proi)er  party  to  the  suit. 

§  155.  Therefore  where  A.  had  contracted  to  purchase  an 
estate  from  B.,  having  previously  agreed  with  C.  to  sell  the 
estate  to  him,  and  a  contract  to  that  effect  was  afterwards 
entered  into  between  A.  and  C,  A.  antl  C.  subsequently 
brought  a  bill  for  ^performance  against  B.,  and  it  was  held 
by  Knight  Bruce  (then),  V.  C,  that  they  were  both  proper 
Xmrties.(r2?)  The  Vice  Chancellor  considered  that  Tasker  v. 
Small  (?/)  had  little  or  no  application  to  the  case  before 
him,(^)  and  appears  to  have  rested  his  decision  on  the 
ground  that  both  the  plaintiffs  had,  at  the  institution  of 
the  suit,  an  interest  in  the  subject-matter  of  it.{z)  And 
from  another  case  it  may  be  gathered  that  if  A.  contracted 
to  purchase  from  B.,  and  A.  then  contracted  withC.  that  B. 
should  convey  to  C,  and  B.  had  notice  thereof,  A.  could 
not  enforce  the  contract  against  B.  without  joining  C.  as  a 
party,  (a)  In  like  manner  a  person  who  by  virtue  of  an 
antecedent  contract  with  the  vendor  claimed  an  interest  in 
the  purchase-money  was  a  proper  party  to  a  suit  for  specific 
performance.  (&) 

§  156.  In  cases  of  contracts  under  powers,  the  question 
sometimes  arose,  whether  a  contract  entered  into  by  the 
donee  of  the  power  could  be  enforced  by  or  against  the  re- 
mainderman, the  cases  in  which  he  could  sue  or  be  sued 
being,  of  course,  coextensive.  The  rule  by  which  this  ques- 
tion was  decided  was  that  the  contract  was  binding  in  those 
cases,  and  those  cases  only,  in  which  it  might  have  been 
enforced  against  the  donee  of  the  power  himself,  independ- 

(w)  Coles  V.  Bristowe,  L.  R.  4  Oh.,  3;  Haw-  (z)  1  Coll.,  '211. 

kins  V.  Maltbv.  iti  , -201).    And  see  infra.  Part  (a)  Anon.  v.  Wnlfonl.  4  Huss.,  3.2. 

VI,  ch  1,  §  1475  ct  se<i.  (^)  West  MuUanil  hallway  Co.  v.  Nbcon,  1 

(X)  Xelthorpe  v.  Holgate.  1  Coll.,  203.  H.  &  M.,  17«. 

(y)  3  My.  &  Cr.,  63,  supra,  §  141. 


74  FRY  ON  SPECIFIC  PKnFOR:\rAXCE  OF  CONTRACTS. 

ently  of  any  condnct  on  his  part.(c)  The  grounds  on  which 
part-performance  by  a  tenant  for  life  will  not  bind  the  re- 
mainderman, will  be  considered  when  we  come  to  treat  of 
the  principles  of  that  subject,  (r?)  It  has  already  been 
noticed  (<?)  that  the  jurisdiction  of  courts  of  equity  has,  by 
statute,  been  excluded  in  regard  to  the  enforcement  of  the 
contracts  of  a  tenant  in  tail  against  those  in  remainder. (/) 

§  157.  The  question  of  how  far  a  reversioner  can  call  for 
the  execution  of  covenants  entered  into  with  his  predecessor 
in  title  is  not  strictly  within  the  scope  of  a  work  on  the  per- 
formance of  executory  contracts  ;  but  it  may  be  worth  while 
to  observe  that  the  32d  Hen.A^III,  ch.  34,  which  gives  to 
reversioners  the  benefit  of  covenants  entered  into  with  their 
predecessors  in  tiMe,  appears  to  have  authorized  a  suit  in 
equity  for  the  specific  i^erformance  of  the  covenant.  As  at 
law,Cr/)  so  in  equity,  the  statute  gives  the  benefit  to  the  suc- 
cessive reversioners  only  as  they  come  into  possession  of  the 
estate  ;  but  when  thus  entitled,  they  have  been  held  to  have 
a  right  to  the  iDcrformance  of  the  covenant  modo  d  form/i, 
irrespectively  of  the  damage  which  may  accrue  from  its 
breach.  (A)  Nevertheless  the  reversioner  entitled  in  re- 
mainder and  not  in  possession  might  have  a  right  to  enforce 
the  covenant ;  but  this  right  was  not  substantiated  by  the 
mere  existence  of  the  covenant,  but  depended  on  the  plain- 
tiff showing  that  he  would,  as  reversioner,  sustain  some 
material  daiuage  by  reason  of  its  breach. (/)  This  followed 
the  analogy  of  the  common  law,  where  the  reversioner,  to 
enable  him  to  sue  as  such,  had  to  show  some  special 
damage.  (,/) 

§  158.  In  one  case  vendors,  plaintiffs  to  a  bill  for  specific 
X)erformance  against  a  purchaser  from  them,  made  a  sub- 
purchaser a  defendant ;  and  the  sub-purchaser  then  filed  his 
bill  against  his  vendor  and  the  original  vendors  for  specific 
performance  ;  to  this  the  original  vendors  objected  that  they 
were  not  proper  parties  ;  but  it  was  held  that  they  had  pre- 

(c>  Morgan  v.  Milraan,  10  Ha.,  270;  S.  C,  3  (h)  Johnstone  v.  Hall,  2  K.  &  J.,  414. 

De  G.  M.  &  G.,  24 ;  Lowe  v.  Swift,  2  Ball  &  B.,  (i)   S.  C. 

529;  and  see  Affleck  v.  Affleck,  3  Sm.  &  G.,  (i)  Jackson  v.  Pesked.l  M.  &  S  ,233;  Bax- 

3''4.  ter  V.  Taylor,  4  B.  &  Ad.,  72;  Mumford  v. 

(d)  See  IntYa,  §  566.  Oxford,  etc.,  Railway  Co.,  1  H.  &  N..  34; 

(e)  Supra,  Part  I,  ch.  2,  §  93.  Simpson  v.  Savage,  1  C.  B.  (N.  S.),  347;  Mott 
(/)  3  and  4  Wm.  IV,  ch.  74,  §  47.  v.  Shoolbred,  L.  R.  20  Eq  ,  22. 

(?)  Isherwood  v.  Oldknow,  3  M.  &  S.,  832. 


GENERAL    RULE.  75 

eluded  themselves  from  the  objection  bj-  the  course  they 
had  pursued.  (A*) 

§  159.  Where  the  circumstances  of  the  case  were  fitting, 
some  might  sue  for  specific  performance  on  behalf  of  all  ;(Z) 
thus  the  directors  of  an  unincorporated  joint-stock  company- 
were  allowed  to  sue  on  a  contract  toinake  a  lease  to  them 
in  trust  for  the  company,  without  joining  all  the  sharehold- 
ers. (??<)  But  in  the  converse  case,  there  was  great  difficulty 
in  applying  to  specific  perfonnancfe  the  principle  that  some 
might  be  sued  on  behalf  of  all;  from  the  nature  of  such 
suits,  however,  this  application  of  the  principle  was  not 
often  required  for  the  ends  of  justice.  In  one  case,  a  joint- 
stock  company  established  by  an  act  of  Parliament,  which 
vested  in  them  all  property  then  belonging  to  them  and 
authorized  them  to  bring  actions  in  the  name  of  their  treas- 
urer, purchased  an  estate,  with  notice  of  a  prior  contract  by 
the  owner  to  grant  a  lease  of  i)art ;  on  a  bill  by  this  x:)ro- 
posed  lessee  against  the  directors  and  treasurer,  but  not  the 
other  proprietors,  asking  for  a  specific  performance  of  the 
contract,  Grant,  M.  R.,  said,  that  though  he  could  bind 
the  interests  of  parties  not  before  the  court,  he  could  not 
compel  them  to  do  an  act,  and  that  the  execution  of  the  lease 
by  a  few  on  behalf  of  all  would  hardly  be  sufficient,  sup- 
posing it  proper.  He,  however,  gave  the  plaintiffs  all  the 
relief  he  could,  by  enjoining  the  treasurer  from  disturbing 
their  possession,  though  he  could  not  compel  specific  per- 
formance of  the  contract.  (??,)' 

(k)  Fenwick  v.  Bulman,  L.  R.  9  Eq.,  165.  Att.  Gen.  v.  Mavor  and  Corporation  of  Poole, 

(0  Fenn  v.  Craig,  3  Y.  &  C.  Ex.,  216.  4  My.  &  Cr.,  17;  Pare  v.  Clegg,  21)  Beav  ,  580; 

(m)  Taylor  v.  Salmon,  i  My.  &  Cr.,  134.  Cullen  v.  Duke  of  Queensbury,  1  Bro.  C.  C, 

(m)  Meux    v     Maltby,    2    8w.,    27".     And  101;  1  Bro.  P.  C,  396. 
see  Adair  v.  New  River  Co.,  11  Ves.,  429; 


1  It  is  clearly  the  nile  that  a  part  may  file  a  bill  iii  behalf  of  themselves  and  all 
others  in  the  same  situation.  IJobiuson  v.  Smith,'  2  Paige,  322.  So,  in  Beatty 
V.  Kurtz,  2  Pet.,  566,  it  was  held  that  a  part  of  the  persons  belonging  to  a  vol- 
untary society,  and  having  a  common  interest,  may  sue  in  behalf  of  themselves 
and  others  having  the  like  interest,  as  part  of  the  same  society,  for  purposes 
<;ommon  to  all  and  beneficial  to  all.  Thus,  part  of  the  members  of  a  German 
Lutheran  Society,  not  incorporated,  may  file  a  bill  for  an  injunction  to  prevent 
their  possession  of  land  dedicated  to  tiie  use  of  the  society,  from  being  dis- 
turbed. Id.  And  where  real  estate  had  been  purchasetl  by  a  joint  fund  raised 
by  subscription,  in  shares,  by  more  than  250  subscribers,  and  the  property  con- 
veyed to  trustees  for  the  stockholders,  on  a  bill  for  the  sale  of  the  premises 
-under  a  mortgage  made  by  the  trustees,  it  wa.s  held  to  be  unnecessary  to  make 
the  stockholders  parties,  the  trustees  sufficiently  representing  all  the  interests 
concerned.  Van  Vechten  v.  Terry,  2  John.  Ch.,  197.  In  a  l)ill  against  an  un- 
incorporated banking  company,  the  members  of  which  are  numerous,  and  m 


76  FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

§  160.  There  are  a  few  cases  in  which  the  strict  rule  that 
none  but  the  parties  to  a  suit  for  its  specific  performance, 
appears  to  liave  been  relaxed  in  order  to  avoid  multiplicity 
of  suits.' 

§  161.  To  this  principle  we  may  probably  refer  the  case 
of  Lowther  v.  Viscountess  of  Andover,(o)  where  a  father 
entered  into  a  covenant  with  the  trustees  of  his  daughter's 
marriage  settlement  to  endeavor  to  purchase  certain  re- 
mainders in  estates  of  which  he  was  tenant  for  life,  and, 
when  purchased,  to  convey  them  to  the  uses  of  the  settle- 
ment. The  covenantor  died,  having  previously  entered  into 
a  contract  for  the  purchase  of  the  remainders ;  on  a  bill 
filed  by  the  trustees  of  the  settlement  against  the  vendors, 
and  it  would  seem  also  the  personal  representative  of  the 
deceased  covenantor,  specific  performance  was  granted.  In 
another  case,  where  the  Duke  of  Chandos  had  granted  to  A. 
a  lease  of  a  lodge,  and  also  the  deputation  of  a  keepership 
in  Enfield  Chase,  and  A.  assigned,  but  for  part  of  the  term 

(0)  1  Bro.  C.  C,  396.    As  to  creditors  of  a    deceased  vendor  suing,  see  Johnson  v.  Leg- 

ard,  T.  &R.,281. 


part  unknown,  it  is  not  necessary  to  bring  all  the  stockholders  before  the  court, 
before  a  decree  can  be  made.  Mandeville  v,  Riggs,  3  Pet.,  482.  A.  filed  a  bil} 
against  B.  and  the  commissioners  of  the  bank  of  J.,  to  subject  the  stock  of  B. 
in  said  bank  to  the  payment  of  a  judgment ;  held,  that  the  stockholders  were 
not  necessary  parties  to  the  bill.  Dana  v.  Brown,  1  J.  .J.  Marsh.,  804.  Where 
some  twenty-eight  persons  are  associated  together  for  the  purpose  of  trade,  the 
legal  title  to  all  their  property,  being  in  a  part  of  them  for  the  benefit  of  the 
whole,  it  is  sufficient  if  those  having  the  legal  title  be  made  parties  defendant 
or  complainant  in  a  bill  in  equity.  Martin  v.  Dryden,  1  Gilm.,  187.  But  a 
bill  will  not  lie  by  a  freeholder  or  inhabitant  of  a  town,  respecting  its  common 
property,  without  the  consent  of  the  town,  duly  declared.  Denton  v.  Jackson, 
2  John.  Ch.,  320.  The  officers  of  a  bank  are,  individually,  not  proper  parties 
to  a  bill  brought  to  enforce  a  demand  against  the  corporation ;  and  the  bill 
should  be  dismissed  on  demurrer.  Wood  v.  Bank  of  Kentucky,  5  Monr..  194, 
and  Atterbury  v.  Knox,  8  Dana.  282,  are  authorities  to  the  effect  that  where 
the  allegations  to  a  cross  bill  are,  that  the  complainant  was  the  agent  of  a  Jor 
eign  bank,  doing  banking  business  in  Kentucky  contrary  to  the  laws  of  Ken- 
tucky, exacting  more  than  legal  interest,  the  bank  should  have  been  made  a. 
party,  and  that  it  was  erroneous  to  try  the  cause  without  it.  In  these  cases  it 
is  no  objection  that  the  trustee  and  ce-sfni  que  trust  unite  in  the  same  bill.  So, 
where  trustees  filed  a  bill  without  disclosing  their  beneficiary,  and  afterwards 
filed  a  supplemental  bill,  disclosing  the  fact  that  they  were  trustees  of  the 
United  States  Bank,  and  praying  that  it  might  be  made  a  party  complainant  to- 
the  bill  and  also  an  amended  supplemental  bill,  disclosing  that  the  bank  had 
gone  into  li(iuidation,  and  that  certain  persons  were  appointed  assignees,  ^nd 
praying  that  they  might  be  made  parties  complainant;  it  was  held,  that  all 
those  persons  constituted,  in  law,  but  one,  representing  the  interests  of  the  bank. 
Hitchcock  V.  United  States  Bank,  7  Ala  ,  387. 

'  Where,  in  order  to  avoid  a  midtiplicity  of  actions,  the  plaintiff  must,  as  a  gen- 
eral rule,  first  establish  his  right  at  law,  before  the  court  will  interfere  to  en- 
force a  contract.    Pen.  Co.  v.  Delaware  Co.,  31  N.  Y.,  91. 


GENERAL    RULE.  77 

only,  to  B.,  B.  was  allowed  to  maintain  a  bill  against  the 
dnke  and  A.  for  tlie  rectification  of  a  mistake  in  the  oiiuinal 
grant  by  the  dnke,  and  for  a  new  and  sufficient  gi'ant  by 
him.(^y) 

§  162.  The  same  i^rinciple  is  illustrated  by  another  case, 
In  which  a  bill  was  filed  by  a  purchaser  against  trustees  for 
sale,  to  enforce  the  specific  performance  of  a  contract  for 
the  sale  of  lot  A. ;  it  was  resisted  on  the  ground  that  by  an 
aiTangement,  to  which  the  plaintiJff  was  a  party,  part  of  that 
lot  as  originally  described  was  taken  from  it  and  given  to 
the  adjoining  lot  B.  The  bill  Avas  amended  to  put  in  issue 
this  averment,  which  came  out  in  the  answer,  but  without 
adding  as  defendant  the  purchaser  of  lot  B. ;  and  the  court 
held  that  he  ought  to  have  been  made  a  defendant,  for 
otherwise  the  vendors  would  be  exposed  to  another  suit 
from  the  purchaser  of  lot  B.($')' 

§  163.  And  where  there  were  claims  made  by  persons, 
strangers  to  the  contract,  adversely  to  both  the  parties  to  it, 
they  might  under  some  circumstances  be  made  defendants 
to  a  suit  for  the  performance  of  it.  Thus,  where  an  assignee 
under  an  insolvency  sold  a  reversionar}-  interest  in  stock  of 
the  insolvent,  and  the  purchaser  was  served  with  notice  not 
to  pay  the  purchase-money  to  the  assignee  by  a  person 
claiming  under  a  previous  assignment  by  the  insolvent  sub- 
sequent to  his  insolvency,  a  bill  was  brought  against  the 
assignee  and  the  adverse  claimant,  and  prayed  an  inquiry 

(p)  Jaiabert  v.  Duke  of  Chandos,  1  Eden,  (?)  Mason  v.  Tranklin,  1  Y.  &  C.  C.  C,  239, 
37-2. 

1  White  V.  Watkins,  23  Mo.,  423. '  A  cesfui  que  trust  is  not  a  proper  party  to 
an  action  brouglit  by  a  trustee  to  enforce  specitic  performance  of  an  agreement 
to  convey  land^  even  where  the  money  paid  on  the  contract  was  a  trust  fund. 
Oibbsv.  Blacliwell,  37  111.,  191;  see,  as  to  making  trustees  parties,  Evans  v. 
Jackson.  8  Sim.,  217;  Saunders  v.  Richards,  1  Coll.  C.  C,  568;  Fleming  v. 
Holt,  13  W.  Va..  143;  Morrow  v.  Laurreuce,  7  Wis..  574.  A  wife  requested 
Iter  husband  to  enter  into  a  written  contract  for  the  sale  of  laud  held  by  him 
in  trust  for  her.  Held,  no  error  to  decree  that  he  could  convey  the  land  free 
from  her  right  of  dower,  notwithstanding  she  opposed  the  decree,  she  was  not 
necessarily  a  part  v.  Rostetter  v.  Grant,  18  Ohio.,  126;  Chapman  v.  Wilbur.  4 
Oregon,  362.  When  real  estate  is  conveyed  in  mere  execution  of  a  trust,  it  is 
unnecessary  to  make  the  vendor's  representatives  parties  fo  the  action.  Down- 
ing v.  Risley,  15  N.  J.  Eq.,  93.  The  legal  title  was  vested  in  the  trustee  merely 
to  secure  the  payment  of  a  given  sum  t"o  a  third  person.  Held,  in  an  action  by 
the  equitable  owner  to  redeem,  that  such  third  person  was  not  a  necessary  party. 
Smith  v,  Sheldott,  65  111.,  219. 


78  FKY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

into  the  rights  of  the  hitter ;  he  was,  in  the  event,  decreed 
to  pay  costs. (r) 

ij  1*64.  And  so,  in  the  case  of  purchases  from  a  vohmtary 
settler,  wliere  the  contract  was  enforced  by  a  purchaser,  it 
seems  to  have  been  proper  to  make  defendants,  not  only  the 
vendor,  but  the  trustees  of  the  settlement  and  the  persons 
benelicially  interested  under  it(5)— the  question  whether  the 
purchaser  was  entitled  to  have  the  contract  performed  de- 
pending on  whether  the  i3revious  settlement  was  or  not  void 
against  him,  and  that  being  a  question  which  could  not  be 
tried  in  the  absence  of  those  who  were  interested  under  the 
settlement  alleged  to  be  voluntary.  "  I  see  no  reason,"  said 
Turner,  L.  J.,(^^)  "why  it  shall  not  be  tried  in  a  suit  for 
specific  performance,  rather  than  be  made  the  subject  of  a 
distinct  and  separate  suit,  the  more  so  as  it  is  a  question 
which  affects  the  validity  no  less  than  the  performance  of 
the  contract." 

§  165.  AVhere  the  several  purchasers  of  several  lots  had 
been  joined  as  defendants  in  one  suit,  a  demurrer  for  multi- 
fariousness was  repeatedly  allowed. (^)  "Suppose,"  said 
Lord  Kenyon,  M.  R.,(^)  "an  estate  is  sold  in  lots  to  different 
persons,  a  plaintiff  could  not  include  them  all  in  one  bill  for 
a  specific  performance,  for  each  party's  case  would  be  dis- 
tinct and  would  depend  upon  its  own  peculiar  circum- 
stances ;  and  there  must  have  been  a  distinct  bill  upon  each 
contract."  And  a  bill  by  several  purchasers  against  one 
vendor  would  have  been  equally  multifarious,  (•z/j) 

§  166.  But  in  one  case  in  which  there  had  been  several 
sales  of  a  like  kind,  and  several  x^nrchasers  joined  as  j)lain- 
tiffs,  and  the  difficulty  in  completing  the  sale  arose  from  the 
same  cause  in  each  case,  and  the  persons  interested  in  the 
estate  made  no  objection  for  multifariousness,  the  court 
decreed  specific  performance  of  the  different  contracts  in 
one  suit,  (re)    And  where  the  jDurchaser  had  entered  into  two 

(r)  Collett  V.  Hover,  1  Coll,  227,  before  Turner  v.  Robinson,  1  S.  &  S.,  313;  Inman  y. 

Lord  Cottenham.  and  ct'   Delabere  v.  Nor-  Wearing,  3  De  U.  &  Sm.,  729. 

wood,  3  Sw  ,  144   (annuitants);    Wilson  v.  (v)  In  Rayner  v.  Julian,  2  Dick.,  677. 

Thomson,  23  W.  R.,  7-14.  (w)  See  Hudson  v.  Maddison,  12  Sim.,  416. 

(«)  Holford   V.    Holford,  1    Ch.   Ca.,  217;  (»)  HarRreaves  v.  Wright,  10  Ha.  Appx., 

Buckle  V.  Mitchell,  IS  Ves.,  lO.i;  WiUats  v.  56     In  this  case  the  bill  was  originally  filed 

Busby,  5  Beav.,  193;  Lister  v.  Turner,  5  Ha.,  by  two  of  the  purchasers  on  behalf  of  them- 

281;  Daklng  V.  W^hlmper,  2G  Beav.,  568.  selves  and   the  other  purchasers,  and   the 

(0  In  Townend  v.  Toker,  L.  R.  1  Ch  ,  457.  court  (Turner,  V.  C),  refused  to  entertain 

(M)  Rayner  v.  Julian,  2   Dick.,  677;   Att.-  the  suit  in  that  form,  but  gave  liberty  to 

Gen.  V.  Mayor,  etc  ,  of  Poole,  4  My.  &  Cr.,  amend  by  adding  other  purchasers  as  co- 

17;  Brookes  v.  Lord  Whitworth,  1  Mad.,  8G;  plaintiffs.    Consider  Turner  v.  May,  32  L.T., 

50. 


gejSteral  rule.  79 

separate  but  simultaneous  contracts  (for  the  purchase  of 
freeholds  and  leaseholds)  with  the  same  vendor,  and  the  in- 
vestigations of  the  two  titles  had  gone  on  concurrently, 
Kindersley,  V.  C,  considered  that  the  vendor  was  right  in 
making  both  contracts  the  subjects  of  one  suit  for  specific 
performance,  (y) 

2.  As  regards  the  lyractlce  of  the  high  court. 

§  167.  No  doubt  the  general  rule  will  still  continue  to  be 
that  the  parties  to  the  contract  are  the  necessary  and  suffi- 
cient parties  to  the  action,  for  that  is  a  rule  of  convenience 
and  good  sense. 

§  168.  But  the  fact  that  persons  may  be  Joined  as  plain- 
tiffs whose  claims  are  alternative,  or  some  of  whom  are 
found  to  have  no  interest  in  the  litigation,  or  that  a  defend- 
ant is  not  interested  in  all  the  relief  claimed  now  furnishes 
no  defense  ;  {z)  and  the  plaintiff  may  unite  in  the  same  ac- 
tion, and  in  the  same  statement  of  claim,  several  causes  of 
action,  subject  to  a  i^ower  in  the  ^court  or  judge  to  direct 
separate  trials  of  the  separate  causes,  (a)  Further,  the  court 
or  a  judge  may  at  any  stage  .of  the  x^i'oceedings  order  the 
name  of  any  party,  j)laintiff  or  defendant,  who  ought  to 
have  been  joined,  or  whose  presence  before  the  court  may 
be  necessary,  in  order  to  enable  the  court  effectually  and 
comi^letely  to  adjudicate  upon  and  settle  all  the  questions 
involved  in  the  action,  to  be  added  ;  (6)  and  as  regards  the 
defendant,  where  he  claims  to  be  entitled  to  any  remedy  or 
relief  over  against  any  other  i^erson,  or  where  from  any 
other  cause  it  appears  to  the  court  or  judge  that  a  question 
in  the  action  should  be  determined  not  only  as  between  the 
plaintiff  and  defendant,  but  as  between  the  j)laintift\  de- 
fendant and  any  other  ]3erson,  or  between  any  or  either 
of  them,  the  court  or  a  judge  may,  on  notice  being  given  to 
such  last-mentioned  i^erson,  make  such  order  as  may  be 
proper  for  having  the  question  so  determined  ;  (c)  and  where 
a  defendant  claims  to  be  entitled  to  some  remedy  or  relief 
over  against  a  j)erson  not  a  party  to  the  action,  he  may,  by 

(y)  Royou  v.  Paul,  28  L.  J.  Ch. ,  SoG.  (6)  Ord.  XVI,  r.  13.    See  Long  v.  Croesley , 

(«)  Ord  XVI,  rr.  1,  4  and  13.    Cf.  Cox  v.    13  Ch.  D.,  3SS. 
Barker,  3  Ch  D.,  359.  (c)  Ord.  XVI,  r.  17. 

(a)  Ord  XVII,  r.  1.    See  Flower  v.  Buller, 
15  Ch.  D.,G65. 


80  FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

leave  of  tlie  court  or  a  judge,  issue  and  serve  on  such  person 
a  notice,  stating  the  nature  and  grounds  of  the  claim ;  (cZ) 
and  the  Rules  of  the  Supreme  Court  provide  in  detail  (e) 
for  the  conduct  and  effect  of  the  proceedings  in  the  action 
with  respect  to  third  parties  served  with  either  of  these 
notices. 

§  109.  Where,  therefore,  the  adverse  claim  of  a  third 
person  is  strictly  a  question  in  the  action,  as,  for  instance, 
where  the  question  is  one  of  title  dependent  on  the  validity 
of  the  claim  of  a  third  party,  the  court  has  the  jDOwer  to 
invoke  the  attendance  of  that  third  party,  and  finally  to 
settle  the  controversy  ;  and  no  doubt  this  power  will  be  ex- 
tensively exercised.  Where,  on  the  other  hand,  the  ques- 
tion between  a  plaintiff  or  defendant  and  the  third  x)arty  is 
not  strictlj^  a  question  involved  in  the  action,  the  third 
party  cannot  be  called  in. 

§  170,  In  a  case  where  the  defendants  (vendors)  alleged 
that  a  bare  trustee  for  them  had  occasioned  the  suit  by  re- 
fusing to  concur  in  the  conveyance,  the  Court  of  Appeal 
(the  plaintiffs  concurring  in  the  application)  gave  the  de- 
fendants leave  to  serve  the  trustee  with  notice  (under  Ord. 
XYI.,  r.  18)  of  the  suit.(/) 

§  171.  But  where  the  defendants  (purchasers  from  the 
mortgagee  of  property  mortgaged  by  the  trustee  and  ex- 
ecutor of  a  will)  having,  after  accepting  the  title,  received 
notice  from  unpaid  residuary  legatees  under  the  will  of  a 
claim  by  them  to  the  property,  moved  to  have  these  lega- 
tees made  i^arties  to  the  action,  the  motion  was  refused  with 
costs,  on  the  grounds  that  there  was  nothing  in  the  notice 
given  by  the  legatees  to  prevent  a  decree  being  made  which 
would  bind  both  vendor  and  purchasers,  and  that  the  lega- 
tees were  not  parties  whose  presence  was  necessary  in  order 
to  enable  the  court  effectually  and  completely  to  decide  all 
questions  involved  in  the  action,  (p') 

§  17S.  The  new  procedure,  by  way  of  counterclaim, 
affords  another  mode  in  which,  in  a  proper  case,  a  person 
who  was  not  a  party  to  the  original  action  may  be  brought 
into  the  proceedings. 

(d)  Ord.  XVI,  r.  18.  (/)  Treleven  v.  Bray,  1  Ch.  D.,  176,  and  2 

(e)  Ord.  XVI,  rr.  19-21.  id.,  724. 

(fir)  Harry  v.  Davey,  2  Ch.  D.,  721. 


GENERAL    RrLE.  81 

Thus,  where  second  mortgagees  brought  an  action  against 
first  mortgagee,  wlio  had  contracted  to  sell  the  mortgaged 
property  under  his  power  of  sale,  claiming  to  have  the  sale 
completed  and  the  sale  moneys  applied  in  satisfaction  of 
the  mortgagees,  and  the  defendant  delivered  a  counter- 
claim, to  which  he  made  the  purchaser  a  co-defendant  with 
the  original  plaintiffs,  alleging  that  the  concurrence  of  the 
latter  in  the  sale  was  a  term  of  the  contract,  and  claiming 
specific  performance;  Hall,  Y.  C,  held  that  the  purchaser 
was  properly  made  a  party  to  the  counterclaim. (7^) 

§  173.  In  actions  for  the  specilic  performance  of  contracts 
relating  to  land  or  a  charge  registered  under  the  land  trans- 
fer act,  1875,  the  court  has  a  special  statutory  power  of 
bringing  into  the  action  any  persons  who  have  registered 
estates  or  rights  in  such  land  or  charge,  {i) ' 

(74)  Dear  v.  Sworder,  4  Ch.  D.,  476.  (i)  38  and  39  Vict.,  ch.  87,  §  93,  infra,  §§  878, 

1110. 


'  Rule  as  to  parties  having  an  interest  in  the  subject  of  the  agreement.]  Where  an 
estate  lias  been  made  the  subject  of  a  contract  of  sale,  all  paries  interested  in 
such  estate  are  proper  parties  in  an  action  for  specific  performance.  Williams 
V.  Leach,  28  Pa.  St.,  89;  Seager  v.  Burns,  4  Minn.,  141.  All  must  join  in  the 
action.  Slaughter  v.  Nash,  1  Litt.  (Ky.).  322;  Rochester  v.  Anderson.  6  id,, 
143;  Speri  v.  Robinson,  9  How.  Pr.,  325;  McCotter  v.  Laurrence,  G  Thomp. 
&  Cook,  392;  4  Hun,  107;  Lavender  v.  Thomas,  18  Ga.,  6G8;  Craig  v.  Smith, 
96  111.,  469;  Flemming  v.  Holt,  12  W.  Va.,  143.  The  appellate  court  will  re- 
verse, if  indispensable  parties  are  omitted,  even  when  the  objection  was  not 
raised  in  the  court  below.  Watson  v.  Gates,  58  Ala.,  647.  In  Guard  v.  Brad- 
ley, 17  Ind.,  60,  it  was  held,  that  an  infant  could  maintain  a  bill  for  specific  per- 
formance, where  the  party  who  contracted  in  the  infant's  behalf  was  competent, 
and  a  full  consideration  had  been  paid.  Specific  performance  of  an  agreement 
for  the  sale  of  land  was  sought  by  persons  who  were  not  parties  to  it,  but  had 
become  vested  with  certain  rights  subsequent  to  the  making  of  the  contract. 
Held,  that  they  were  proper  parties  to  an  action  to  determine  the  rights  of  the 
parties  thereto.  Curran  v.  Holyoke  Waiter  Power  Co..  116  Mass.,  90.  While 
an  action  was  pending  to  enforce  specific  performance,  the  respondent  conveyed 
the  premises  to  a  third  party,  and  a  decree  of  performance  was  entered  without 
bringing  in  such  third  party.  The  decree  was  reversed  on  appeal.  Casady  v. 
Scallen,  15  Iowa,  93. 

Riile  us  to  adverse  claimants.']  Where  a  party  has  adverse  or  inconsistent 
rights  in  the  subject  matter  of  the  suit,  he  cannot  be  made  a  party  plaintiff. 
Grant  v.  Schoonhoven,  9  Paige's  Ch.,  225.  In  Ilanchett  v.  McQueen,  33  Mich., 
22,  it  was  held  that  where  the  interests  of  the  vendee,  his  wife  and  his  assignee 
for  creditors  are  conflicting,  the  vendor,  in  his  bill  for  specific  performance, 
might  ask  to  have  the  respective  rights  of  the  claimants  determined.  U  here 
the  decree  cast  a  cloud  upon  title— Held,  that  one  who  clainied  title  uiuler  the 
vendor,  might  come  in  and  be  made  a  party.  Carter  v.  Mills,  30  >Iiss  ,  43— 
A.  purchased  real  estate  at  sherilf "s  sale,  and  brought  an  action  to  compel  a 
conveyance  from  the  sheriff;  the  former  owner  claimed  a  right  of  redwinption. 
Held,  that  he  had  a  right  to  be  joined  as  party  defendant.  Crosby  v.  Davis,  9 
Iowa,  98.  An  actionVas  brought  for  the  specific  performance  of  a  contract 
to  convey  an  undivided  interest  in  land.  Held,  that  those  who  arc  subject  to 
the  complainant's  equity,  and  hold  adversely  to  him,  are  necessary  parties. 
Agard  v.  Valencia,  39  Ala.,  292. 

6 


82  FRY  ON  SPECIFIC  PEKFORMANOE  OF  CONTRACTS. 


CHAPTER  II. 

OF   A   STRANGER  TO   THE   CONTRACT. 

§  174.  Can  a  stranger  to  the  contract  sue,  or  be  sued,  for 
its  performance? 

It  will  be  convenient  to  consider  the  two  branches  of  this 
question  separately. 

1.  As  to  a  stranger  suing. 

§  175.  It  is  a  general  principle  both  at  common  law  and 
in  equity,  that  a  stranger  to  the  contract  cannot  sue  on  it ; 
and  this  is  not  varied  by  the  mere  fact  that  the  stranger 
takes  a  benefit  under  it.(«)* 

§  176.  Thus  in  a  case,  where  protracted  litigation  had 
been  undertaken  by  A.  for  the  recovery  of  an  estate,  and  in 

(a)  Crow  V.  Rogers,  1  Str.,  592;  Ex  parte  Uery  Co.  v.  Hawkins,  3  H.  &  C  ,  677.    The 

Peele,  6  Ves.,  602,  604;  Ex  parte  Williams,  dicta  of  Eyre,  C    J.,  In  Fellmakers'  Co.  v. 

Buck,  13;  Berkeley  v.  Hardy.  5  B.  &  C,  355;  Davis,  1  B.  &  P.,  102,  and  of  Buller,  J.,  in  his 

Lord  Southampton  v.  Brown,  6  id.,  718;  per  N.  P.,  134,  do  not  appear  to  be  law.    The 

Lord  Langdale,  M.  R. ,  in  Colyear  v.  Countess  Scotch  law  diflTers  from  ours  in  this  partlcu- 

of  Mulgrave,  2  Ke  ,  98;  per  Cotton,  L.  J.,  In  lar,  recognizing  the  ju*  qucuitum  tertto.  Stair 

Be  D' Angibau,  16  Ch.  D.,  242 ;  Hill  v.  Gomme,  Inst,  B.  »,  1. 10,  §  5. 
5My.  &Cr.,250,  256;  Chesterfield,  etc.,  Col- 

1  One  who  claims  an  adverse  interest,  which  was  vested  in  him  previous  to 
the  agreement,  is  not  a  necessary  party.  Smith  v.  Sheldon,  65  111.,  212;  aff'g 
S.  C,  44  id.,  68.  During  the  pendency  of  an  action  for  the  specific  perform- 
ance of  a  contract  to  convey  property,  creditors  of  the  vendor  obtained  judg- 
ment against  him  and  sold  such  property.  Held,  that  neither  the  creditors  nor 
purchasers  were  necessary  parties.  Lecombe  v.  Sheldon.  20  How.,  94.  A 
stranger  to  the  agreement  claimed  an  interest  in  the  purchase  money.  Held, 
that  he  might  be  made  a  party  to  the  suit.  Moon  v.  Wilkerson,  47  Miss.,  633; 
Kimbrough  v.  Curtis,  50  id.,  117;  Boyce  v.  Francis,  56  id.,  573.  A  third 
party,  to  whom  the  vendor  had  conveyed,  and  who  had  promised  to  pay  the 
original  vendor,  was  held  to  be  a  proper  party  defendant.  Campbell  v.  Patter- 
son, 58  Ind.,  66.  In  a  proper  case,  a  part  may  file  a  bill  for  specific  perform- 
ance for  all;  e.  g.,  the  directors  of  a  stock  company  may  act  for  the  stockhold- 
ers and  need  not  join  them  all.  Dana  v.  Brown,  1  J.  J.  Marsh,  304;  Robinson 
v.  Smith,  3  Paige's  Ch.,  322;  Reese  v.  Police  of  Lee  Co.,  49  Miss.,  639. 

Upon  the  same  principle  of  privity  an  analagous  case  was  decided  in  Penn- 
sylvania. Where  a  widow  executed  an  instrument  ''To  all  whom  these  pres- 
ents shall  come,"  and  purporting  to  be  a  general  release  of  dower,  it  was  held, 
that  a  son  of  the  deceased,  although  not  a  party  to  the  instrument,  had,  never- 
theless, such  an  interest  as  would  entitle  him  to  the  benefit  of  the  release.  Gray 
V.  McCune,  11  Harris,  447.  In  Louisiana,  under  the  civil  law,  the  doctrine  of 
privitv  is  carried  very  far,  and  children,  to  the  extent  of  the  legitime,  are  not 
considered  as  heirs,  but  as  creditors  of  their  father's  estate.  Vide  Succession 
Trimmel,  decided  in  1854.  Opinion  Book  24,  page  328;  Maples  v.  Mitty,  12 
La.  An.,  759. 


A   STKAXGER  TO  THE  CONTRACT.  83 

the  course  of  these  proceedings  A.  became  greatly  indebted 
to  his  solicitor,  and,  by  a  contract  between  A.  and  his  brotlier 
B.,  A.  agreed  to  relinquish  his  interest  in  the  estate  to  B., 
in  consideration  of  B.'s  undertaking  to  pay  the  costs  already 
incurred  with  interest,  it  was  held,(&)  that  the  solicitor,  be- 
ing no  party  to  the  contract,  and  having  given  no  consid- 
eration for  it,  could  derive  no  benefit  under  it  capable  of 
being  enforced  by  him.' 

§  177.  There  are,  however,  several  apparent  exceptions 
to  this  principle. 

§  178.  Thus  (1)  there  may  be  cases  in  which,  where  A. 
has,  as  a  trustee  for  B.,  contracted  with  C,  B.  may  be  en- 
titled to  sue  both  C.  and  A.  for  performance  of  the  contract. 
The  case  of  Touche  v.  Metropolitan  Railway  Warehousing 
Co.,  is  a  case  of  this  sort. 

§  179.  (2)  There  are  cases  of  agency  w^hich  may  wear  the 
aspect  of  exceptions  to  the  rule.  In  Hook  v.  Kinnear(6^ 
the  two  defendants  were  tenants  in  common  of  certain  lands, 
and  the  defendant  Kinnear,  having  been  tenant  of  the  de- 
fendant Philips'  moiety,  and  in  arrear  to  him  for  the  rent, 
agreed  with  Philips  to  execute  to  the  plaintiff  such  lease 
of  the  entire  premises  as  Philips  and  the  plaintiff  should 
agree  upon,  and  that  all  the  rent  should  be  paid  to  Philips 
till  the  arrears  due  to  him  were  satisfied.     The  plaintiff  was 

(6)  Moss  V.  Balnbrlgrge,  18  Beav.,  478,  482;  (c)  L.  R.  6  Ch.,  671.  Distinguish  Be  Em- 
S.  C,  on  appeal,  6  De  G.  M.  &  G.,  292.  press  Engineering  Co.,  29  W.  R.,  342. 

(d)  3  Sw.,  417,  n. 

'  In  the  construction  of  an  athena'um  in  ilarj-land,  a  subscription  book  was 
purchased,  containing  the  name  of  the  plaintiff  as  treasurer  of  the  fund  to  be 
collected;  also  the  names  of  six  others  as  a  building  committee,  with  authority 
to  call  in  the  subscription  in  such  installments  as  might  be  required  in  the 
course  of  construction.  A  resolution  of  the  committee  afterwards  called  in  the 
unpaid  subscriptions,  "payable  to  the  plaintiff."  Held,  that  the  plaintiff  could 
not  maintain  an  action  against  a  delinquent  subscriber  in  his  own  name.  Git- 
tings  V.  ^layhew,  6  Md.,  113.  Upon  an  agreement  by  one  person  to  become 
responsible  for  another  for  a  part  of  the  proceeds  of  an  expected  sale,  an  action 
by  a  third  person  will  not  lie,  although  tlie  consideration  moved  from  the  third 
party.  Tewksbury  v.  Hayes,  41  Me.,  123.  But  it  is  also  held,  in  the  same 
State,  that  where  a  party,  for  a  valuable  consideration,  stipulates  with  another 
by  simple  contract,  to  pay  money,  or  do  some  act  for  the  benefit  of  a  third  per- 
son, such  third  person,  if  there  be  no  other  objection  than  want  of  privity  be- 
tween the  parties,  may  maintain  an  action  for  the  breach  of  the  engagement; 
or  he  may,  if  he  choose,  disregard  it,  and  seek  his  remedy  tlirectly  against  the 
party  with  whom  his  contract  primarily  exists.  Bohanau  v.  Pope,  42  Maine, 
193.  If  A.  contract  to  support  B.,  and  fraudulently  refuse  to  fulfill  his  agree- 
ment, whereby  B.  becomes  chargeable  to  the  town,  this  does  not  entitle  the 
town  to  proceed  against  A.  in  law  or  equity,  although  the  original  contract  was 
intended  to  defraud  some  other  party.    Milton  v.  Story,  11  \  erm.,  101. 


84  FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

no  party  to  the  contract ;  Philips  entered  into  another  con- 
tract with  the  plaintiff  for  a  lease  of  the  premises  to  the  plain- 
tiff at  £30  per  annum,  and  executed  a  lease  of  his  moiety  at 
£15  per  annum  ;  the  defendant  declined  to  do  the  same  in 
respect  of  his  moiety,  and  it  was  objected  that  the  plaintiff 
as  a  stranger  conld  not  sue  ;  bnt  Lord  Hardwicke  overruled 
the  objection,  on  the  ground  that  Philips  might  be  taken 
as  the  agent  of  the  plaintiff  in  the  contract  with  Kinnear, 
and  compared  it  to  the  case  of  stewards  entering  into  con- 
tracts, and  their  masters  enforcing  them. 

§  180.  (3)  There  are  cases  of  persons  claiming  benefits 
nnder  deeds  who  are  not  imrties  to  the  deeds  ;  (e)  of  persons 
suing  for  the  execution  of  the  trusts  of  marriage  settlements 
who  are  not  parties  to  such  settlements,  (/)  and  of  proceed- 
ings by  children  nnder  contracts  antecedent  to  the  mar- 
riages of  which  they  are  the  issne.  But  these  either  refer 
to  executed  and  not  to  executory  contracts,  or  attract  the 
jurisdiction  of  the  court  on  grounds  other  than  that  of  the 
specific  performance  of  contracts  resting  in  fieri. 

§  1 8 1 .  (4)  There  is  a  class  of  cases  where  the  nearness  of 
relationship  of  one  party  to  the  contract  with  the  party  to 
be  benefited  by  it  was  supposed  to  give  to  the  latter  the 
benefit  of  the  consideration  and  a  right  to  sue  on  the  con- 
tract. The  Physician's  case(^)  was  the  leading  authority 
on  this  point.  There  A.  made  a  promise  to  his  physician, 
that,  if  he  would  effect  a  certain  cure,  he  would  pay  a  sum 
of  money  to  the  physicians'  s  daughter ;  and  it  was  held 
that  she  might  sue.  In  another  case  in  assumpsit  the 
jplaintiffs,  who  were  husband  and  wife,  declared  that  the 
wife' s  father,  being  seized  of  lands  which  had  subsequently 
descended  to  the  defendant,  was  about  to  fell  £1,000  worth 
of  timber  to  raise  a  portion  for  his  said  daughter  ;  and  the 
defendant  promised  the  father  that,  if  he  would  forbear  to 
fell  the  timber,  he  would  pay  the  daughter  £1,000.  A  ver- 
dict was  found  for  the  plaintiffs  ;  but  it  was  moved,  in 
arrest  of  judgment,  that  the  father  alone  could  have  brought 
the  action,  but  not  the  husband  and  wife ;  but,  after  two 
arguments,  the  objection  was  overruled  on  the  ground  of 

(e)  8  and  9  Vict.,  ch.  106,  §  5.  (p)  Cited  1  Ventr.,  6. 

(/)Cf.  Re  D'Angibau,  15  Ch.  D.,  228,  242, 
and  supra,  §  92. 


A  STRANGER  TO  THE  CONTRACT.  85 

the  nearness  of  relationship.  (Z^)  But  these  cases  were  in 
the  year  1861  considered  and  deliberately  disapproved  by 
the  court  of  Queen' s  Bench,  and  can  no  longer  be  consid- 
ered law.(i)* 

§  1 82.  (5)  It  seems  that  an  exception  may  arise  to  the 
general  principle  that  a  stranger  even  though  taking  a  benefit 
nnder  a  contract  cannot  sue  on  it,  in  cases  where  the  con- 
tract is  of  such  a  nature  and  has  been  so  far  acted  upon  as 
to  change  the  condition  in  life  of  the  stranger,  and  to  raise 
in  him  reasonable  expectations  grounded  on  the  contract.* 
Such  a  case  might  be  presented  by  a  contract  between  A., 
a  rich  man,  and  B.,  a  poor  one,  that  A.  should  take  B.'s 
child,  bring  him  uj)  as  a  gentleman,  and  leave  him  certain 
property,  and  a  part  performance  of  this  on  A.'s  part.  But 
here,  any  right  which  the  child  of  B.  might  have  to  insist 
on  the  contract  is  derived,  not  from  the  contract  alone,  but 
from  the  conduct  of  A.  in  pursuance  of  it,  and  the  wrong 
which  the  child  would  sustain,  if  the  contract  were  carried 
out  in  part  and  not  in  whole.  For  no  such  equity  would 
exist  where  the  contract  remained  entirely  in  abeyance. (y)* 

(A)  Dutton  V  Pool,  1  Ventr.,318, 33-2;  2  Lev.,  («)  Tweodle  v.  Atkinson,  1  Best  &  Sni.,  393. 

210,  affirmed  In  Cam.  Scac.  T.  Raym.,  302;  (j)  Hill  v.  Gomme,  1  Beav.,  540;  5  My.  & 

per  Lord  Mansfield,  C.  J.,  in  Martyn  v.  Hind,  Cr  ,  250;  Lyons  v.  Blenkin,  Jac,  245. 
Cowp.,  443. 

'  Rule  as  to  relationship. '\  The  rule  appears  to  be  that  a  relationship  which  is 
more  remote  than  that  of  parent,  child  or  wife,  carries  with  it  no  moral  ol)liga- 
tion  upon  which  a  court  of  ecjuity  will  found  a  decree  for  the  specific  perform- 
ance of  a  mere  executory  contract.  Bufford  v.  McKee,  1  Dana,  107;  Hays  v. 
Kersliom,  1  Sandf.  Ch.,  258;  Reed  v.  Mauarsdale,  2  Leigh.,  509;  Caldwell  v. 
Williams,  Bailey  Ch.,  175;  Chandlery.  Neale,  3  Hen.  it  :Mumf.,  124;  Parker 
V.  Carter,  4  id.,  273;  Hawrey  v.  Alexander,  1  Rand.,  219. 

*  In  New  Jersey  it  was  held,  that  where  an  infant  child  was  taken  by  an 
uncle,  under  an  agreement  between  the  father  and  such  uncle  that  such  child 
should  be  adopted  as  his  own,  and  the  child  lived  with  the  uncle  twenty  five 
years,  and  had  no  share  in  his  father's  estate.  Held,  that  the  child  might 
maintain  an  action  to  enforce  the  aiireement.  Van  Dyne  v.  Vrcelaud,  11  N.  J. 
Eq.  (3  Stock.),  270. 

3  Limitations  in  marriage  settlements  to  collateral  relations  have  been  repeat- 
edly held,  in  England,  tobe  voluntary.  Reeves  v.  Reeves,  9  Mod  .  132;  John- 
son V.  Legard,  3  Yes.,  352;  Cormick  v.  Trapaud,  0  Dnw.,  3(5.  So.  for  exam- 
ple, limitations  to  collaterals,  in  a  marriage  settlement,  made  by  a  tenant  in 
tail,  are  voluntarily  against  a  subsequent  purchaser  fur  a  valuable  consideration, 
in  the  same  manner  as  if  the  settler  had  had  the  fee.  Cormick  v.  Trapaud,  6 
Dow.,  3().  Limitations  in  favor  df  issue  of  a  second  marriage  seem  to  stand 
upon  a  different  footing  and  to  be  held  good.  Clayton  v.  El  Hilton,  cited  3 
Madd.,  3(52;  Ithell  v.  Beane,  1  Yes.,  216. 

That  the  doctrine  of  ]>rivity  in  respect  to  collaterals  has  Ijccn  carried  to  the 
same  extent  in  this  country  as  in  England,  is  evidently  not  the  case.  The  sub- 
ject has  come  but  seldom  before  the  courts,  and  was  for  a  time  a  much  mooted 
point ;  but  it  now  seems  clearly  to  be  established  that  collateral  consanguinity 


86  FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

2.  ^.s'  to  a  stranger  being  sued. 

§  183.  Generally  a  stranger  to  the  contract  is  not  a  proper 
defendant  to  an  action  for  enforcing  it. (A*)  But  this  gen- 
eral rule  is  subject  to  exceptions. 

§  184.  If  a  stranger  to  the  contract  gets  possession  of  the 
subject-matter  of  the  contract  with  notice  of  it,  he  is  or  may 
be  liable  to  be  made  a  party  to  an  action  for  specific  per- 
formance of  the  contract  upon  the  equitable  ground  of  his 
conscience  being  affected  by  the  notice. 

§  1  'f^5.  Thus,  where  S.  contracted  with  P.  for  the  sale  to 

(;fc)  See  supra  8  140,  and  per  Stuart.  V.  C.  different  where  the  action  Is  for  rescission, 

in  Bishop  of  Winchester  v.  Mid  Hants  Rail-  See  Aberaman  Ironworks  v.  Wickens,  L.  K. 

way  Co  ,  21,  and  West  Midland  Railway  Co.  4  Ch.,  111. 
V.  Ni.\on,  1  H.  &  M.,  176.    The  case  may  be 


is  not  a  meritorious  consideration,  upon  which  a  court  of  equity  will  specifi- 
cally enforce  an  executory  covenant  or  agreement.     The  case  of  Buford's  Heirs 
V.  McKee.  1  Dana,  107,  in  the  Court  of  Appeals  in  Kentucky,  is  directly  in 
point.     The  defendants  took  the  land  by  devise  from  one  who  in  his  life-time 
had  executed  a  covenant  to  Buford  (who  was  his  nephew),  to  convey  the  same 
land  to  B.  at  the  covenanter's  death.     On  a  bill  by  B.'s  heirs  for  the  specific 
performance  of  the  agreement,  it  was  refused  by  the  court,  on  the  ground  that 
the  covenant  was  voluntary,  and  that  the  relationship  between  the  parties  did 
not  constitute  a  meritorious  consideration.     And  in  Hayes  v.  Kershaw,   1 
Sandf.  Ch.,  258,  the  assistant  vice-chancellor,  after  quoting  "Buford's  Heirs  v. 
McKee  "  with  approbation,  decided  that  relationship,  such  as  that  of  a  brother, 
nephew,  neice,  etc.,  did  not  constitute  a  good  consideration;  that  it  carried 
with  it  no  moral  obligation  as  that  of  providing  for  a  wife    or  children,  or 
pareut,  upon  which  a  court  of  equity  would  found  a  decree  for  specific  per- 
formance of  a  covenant.     In  Maryland  it  has  been  decided,  that  the  considera- 
tion of  mutual  love  and  affection  is  sufficient  in  a  deed;  but  a  mere  executory 
contract  which  requires  a  consideration  as  a  promissory  note,  cannot  be  sup- 
ported on  the  consideration  of  blood  or  mutual  love  and  affection;  something 
more  is  necessary — some  valuable  consideration — or  it  cannot  be  enforced  at 
law  or  in  equity.     Pennington  v.  Gittings,  2  Gill.  &  John.,  208.     In  Virginia, 
a  son  and  son-in-law  promised  in  writing  to  pay  a  debt  held  against  the  estate 
of  their  deceased  father  and  father-in-law.     Neither  of  them  was  executor,  and 
it  did  not  appear  that  there  was  any  deficiency  of  assets  for  the  payment  of 
debts,  or  that  either  of  them  had  any  larger  portion  of  the  estate  than  the  other 
children.     Held,  that  the  promise  was  nudum  pachim.     Chandler  v.  Neale,  2 
Hen.  &  M.,  124;  Parker  v.  Carter,  4  Mun.,  273.     A.  being  wealthy  and  child- 
less, verbally  promised  his  brother  B  ,  who  was  poor  and  had  many  children, 
that  if  he  would  not  remove  to  the  west  country,  but  would  move  to  and  set- 
tle on  a  lot  of  land  of  A.  he  would  convey  it  to  him.     B.  accepted  the  offer, 
and  took  possession  of  the  land;  held,  that  the  promise  was  not  supported  by 
either  a  valuable  or  meritorious  consideration,  and  would  not  be  specifically 
enforced  against  the  heirs  of  A.     Reed  v.  Yannorsdale,  2  Leigh,  5G9.     In  Cald- 
well V.  Williams,  Bailey's  Ch.,  175,  it  is  said,  that  "no  agreement  can  be  en- 
forced, cither  in  law  or  in  equity,  which  is  not  founded  on  a  consideration." 
Some  agreements  which  are  termed  voluntary,  are  executed  in  equity,  when 
made  in  favor  of  a  wife  or  children ;  but  this  is  done  only  where  the  instrument 
is  uuder  seal,  which  imports  a  consideration,  and  renders  the  agreement  valid 
at  law;  and  there  is  no  instance  of  an  agreement  being  enforced,  which  is  not 
only  voluntary  in  the  equity  sense  of  the  word,  but  also  midum  pactum  at  law. 
The  rule,  in  this  country,  seems  to  have  never  been  extended  to  relations  more 
remote  than  children  or  wife.     See,  also,  Hawey  v.  Alexander,  1  Rand.,  319. 


A  STKANGEFw  TO  THE  CONTIIACT.^  87 

him  of  an  estate,  and  afterwards  conveyed  it  to  C,  who,  at 
the  time  of  the  conveyance,  had  notice  of  P.'s  contract, 
on  a  bill  filed  by  P.  against  S.  and  C.  for  the  enforcement  of 
the  contract  between  S.  and  P.,  Wigram,  Y.  C,  decreed 
si)ecific  performance  of  that  contract,  ordered  all  necessary 
parties  to  convey  the  estate  to  P.,  and  gave  the  plaintiff  costs 
against  both  S.  and  C.(Z). 

§  186.  Again,  a  stranger  to  the  contract  may  so  mix  him- 
self np  with  it  by  setting  up  a  claim  to  some  benefit  result- 
ing from  it,  as  to  render  himself  lia):)le  to  be  made  a  party 
to  proceedings  for  the  enforcement  of  the  contract ;  as,  for 
instance,  by  claiming  to  be  interested  in  the  purchase-money 
tinder  an  arrangement  antecedent  to  the  contract.  (77^) 

§  1 87.  In  some  cases  where  a  portion  of  the  relief  claimed 
might  affect  the  person  in  actual  possession  of  the  property, 
that  person  may  properly  be  made  a  party  to  an  action  for 
the  specific  performance  of  the  contract ;  as,  for  instance, 
where  the  i:)urcliasers,  a  railway  company,  being  in  posses- 
sion of  the  land  contracted  to  be  purchased  leased  it  to 
another  railway  company,  who  opened  and  worked  a  rail- 
way over  it,  and  the  unpaid  vendors  filed  their  bill  against 
both  companies  for  performance  of  the  contract,  declaration 
of  the  vendors'  lien,  and  the  appointment  of  a  receiver.  (7?) 
"Ordinarily,''  said  Stuart,  Y.  C.,(o)  "a  i^erson  not  being  a 
party  to  the  contract  ought  not  to  be  brought  before  the 
court.  But  it  is  otherwise  where  possession  is  sought  ])y 
the  bill,  and  the  person  in  possession  will  be  affected  In*  the 
decree.  Therefore  the  South  Western  Company  (the  lessees) 
have  been  j^roperly  brought  here." 

§  188.  Lastly,  there  are  provisions  in  the  rules  by  which 
the  present  i^ractice  of  the  court  is  regulated, (^>»)  and  in  the 
land  transfer  act,  1875,(<7)  by  virtue  of  which  strangers  to 
the  contract  may,  in  certain  cases,  be  brought  into  the  posi- 
tion of  defendants  to  an  action  for  enforcing  its  specific 
performance. 

(/)  Potter  V.  Sanders,  6  Ha  ,  1 ;  cf.  Daniels  Aberanian  Ironworks  v.  Wickens.  L.  R.  4 

V.  Davison,  17  Vcs  .  433;  Holmes  v.  Powell,  Ch.,  101 ;  Wilson  v.  Thomson,  li  W.  K  ,  744. 

8D.'<.   M    &  G.,  57-2;  and  (llstinguisli  Lenty  (?i)  Ulsliop    of   Wiiichoeter    v     Mid-Hants 

V.  Hillas.  i  De  (i.  &  J.,  110;  Fenwlck  v.  Bui-  Hallway  Co.,  L.  U    5  Eq.,  17.    Cl".  Churchill 

man,  L.  U  9  Eq.,  lG.i.  v.  .Sallsl)ury  and  Dorset  Railway  Co.,  iS  W. 

(m;  West  Midland  Railway  Co.  v.  Nixon,  1  K.,  .t.)4,  ^iW. 

H.  &M.,  17G    Consider  Muston  V.  Bradshaw,  (o)  L.  U.  ."5  Kq., -21. 

15  Sim.,  lii-2,  where  the  interest  claimed  was  (p)  See  §  168  et  8e»i. 

created  subsequently  to  the  contract,  and  cf.  (?)  See  §§  i73, 1110. 


88  FKT  ON  SPECIFIC  PERFOKMANCE  OF  CONTRACTS. 


CHAPTER  III. 

OF  THE  DEATH  OF  A  PARTY  TO  THE  CONTRACT. 

§  1 89.  The  general  rule,  that  parties  to  the  contract  must 
alone  be  parties  to  the  action,  is  further  modified  by  certain 
circumstances,  one  of  which,  namely,  the  death  of  a  party 
to  the  contract,  will  now  be' considered.  By  this  circum- 
stance, with  the  exception  to  be  mentioned  hereafter,  (a)  the 
obligation  to  perform,  and  the  right  to  call  for  the  perform- 
ance of,  the  contract  devolve  on  the  representatives  of  the 
party  dying. 

§  190.  If  the  vendor  of  real  estate  die  before  completion, 
the  contract  may  be  enforced  either  by  the  purchaser,  (5)'  or 
by  the  personal  representative  of  the  vendor  ;(c)'  but  in  both 
cases  the  heir(cZ)  or  devisee(e)  must  be  a  party,'  as  having  an 

(fl)  See  Infra,  §  199.  («)  Gallon  v.  Emuss,  1  Coll.,  243;  Half  v. 

6)  Hinton   v.    Hinton,  2  Ves.  Sen.,  631;  Bushill,  35  Beav.,343;  Purser  v.  Darby,  4  K, 

Barker  v.  Ulll.  2  Rep.  In  Ch.,  218.  &  J.,  41  (costs).    See,  too,  London  and  South- 

(c)  Baden  V.  Countess  of  Pembroke,  2  Vern.,  Western  Railway  Co.  v.  Bridger,  12  W.  K., 

2].2  948.    AB  to  l\\e  cfi</ms  que  trvst  of  Tttil  estate 

Td)  Roberta  v.  Marchant,  1  Ha.,  547;  S.  C,  deTited  in  trust,  eee  15  and  16  Vic:.,  ch.  86, 

1  Ph.,  370;  Laconv.  Mertins,  3  Atk  ,l;  Hod-  §  42,  r.  9  ;  Ord.  XVI,  rr.  7, 11.* 
del  V.  Pugh,  33  Beav.,  489  (costs);  cf.  Longi- 
notto  V.  Morss,  26  L.  T.,  828  (lease). 

*  Where  an  objection  is  taken  at  the  hearing,  to  the  omission  of  a  party  as 
cestui  que  trust,  by  the  defendant,  he  must  show  clearly  the  existence  of  the 
interest  at  the  commencement  of  the  suit ;  and  the  court  is  not  bound  to  take 
notice  of  any  interest  in  the  subject  of  the  suit,  acquired  by  purchase  since  the 
suit  -was  commenced.     Cook  v.  Mancius,  5  John.  Ch.,  59. 

'  Newton  v.  Swazev,  8  N.  H.,  9;  Glaze  v.  Drayton,  1  Dessau.,  109;  S.  P., 
Wilkinson  v.  Wilkinson,  1  id.,  201. 

2  A.  sold  a  tract  of  land  to  B.,  a  conveyance  to  be  made  on  the  payment  of 
the  second  installment.  A.  became  insane  before  the  time  arrived  on  which  he 
was  to  convey,  and  died,  leaving  a  widow  and  infant  heirs,  and  a  deed  was 
made  under  order  of  the  court.  On  a  bill  filed  by  the  administrator  and  heirs 
of  A.  for  specific  execution,  it  was  held,  that  the  complainants  not  having  con- 
veyed was  no  objection  to  the  bill;  and  that  B.  having  had  the  use  of  the  land, 
must  pay  interest  on  the  purchase  money,  which  could  not  be  avoided  by  a 
tender  to  the  wife,  on  condition  of  making  title,  in  the  absence  and  derange- 
ment of  A.     Boj^ce  V.  Prickett,  6  Dana,  2^1. 

»  Where  a  vendor  of  lands  holds  notes  for  the  purchase  money,  and  assigns 
the  notes,  he  transfers  thereby  his  lien  on  the  land  to  the  assignee.  The  heirs 
of  the  assignor  are  necessary  parties  to  a  bill  by  the  assignee  to  subject  the 
equity  of  the  vendee  to  satisfaction  of  the  judgment  on  the  notes ;  and  where 
they  were  not  made  parties,  time  will  be  allowed  to  bring  them  before  the 
court.  Edwards  v.  Bohanan,  2  Dana,  97;  Steele  v.  Steele,  4  J.  J.  Marsh.,  231. 
In  Lansdale  v.  Cox,  7  J.  J.  Marsh.,  391,  A.  and  B.  being  sureties  in  a  bond,  A. 
was  obliged  to  pay  the  whole  amount,  and  (the  principle  being  insolvent) 


DEATH  OF  A  PAKTY  TO  TIIK  CONTIIATT.  89 

interest  in  disimtinfi;  the  contract ;'  and  it  niak«'.s  n<>  differ- 
ence that  the  legal  estate  is  outstanding  in  a  trustee.!/)    As 

(/)  Roberts  v.  Marchant,  1  Ha  ,  M7;  1  Ph.,    370.    DislioguUh  Fowler  v.  Llghiburne,  11 
Ir.  Ch.R.,  «.5.  600. 

brouijht  this  suit  against  the  administrator  and  heirs  of  B.  Held,  that  the  heirs 
and  devisees  of  two  deceased  children  of  B.  should  have  l)een  made  j)arties. 
See  Triplet  v.  Hill,  7  J.  J.  Marsh.,  4;i2.  In  Kenny  v.  Collins,  4  Litt.,  2m0,  A. 
brought  his  hill  against  B.,  alleging  a  purchase  of  land  by  C.  from  I).,  and  a 
receipt  of  a  bond  from  D.  for  the  title;  that  C.  sold  the  land  to  E.,  taking  F^.'s 
bond  for  the  price,  which  bond  was  assigned  to  the  complainant — that  E.  had 
died  without  having  disposed  of  the  land;  and  that  B.  intermeddling  with  E.'s 
estate,  had  become  e.\ecutor  in  his  own  wrong  and  had  fraudulently  obtained 
a  deed  of  the  land  in  his  own  name.  The  bill  asserted  a  lien  on  the  land,  and 
prayed  for  a  sale.  Held,  that  A.  was  entitled  to  the  benefit  of  C.'s  lien  on  the 
land,  but  that  the  heirs  of  E.  were  necessary  parties  to  the  suit,  and  that  the 
bill  should  be  dismissed  without  prejudice.  Carr  v.  Callaghan,  '3  Litt.,  SG."); 
Berry  v.  Berry,  3  .Monr.,  368.  The  widow  and  heirs  of  a  decesised  person  sold 
lands  of  the  estate,  gave  a  bond  for  title,  and  took  notes  for  the  purchase 
money,  in  the  name  of  the  widow  only.  Held,  that  the  heirs  were  necessary 
parties  to  a  bill  by  the  widow  to  compel  payment  of  the  purchase  money,  and 
that  a  sale  of  the  land,  under  a  decree  in  a  suit  by  the  widow  alone,  would  not 
pass  the  title,  Alexander  v.  Perry.  4  Humph.'  391.  In  Lee  v.  Marshall.  2 
Monr.,  30,  it  is  decided  that  all  the  devisees  must  be  made  parties  to  a  bill  to 
enjoin  executors  from  selling  land  belonging  to  the  testator's  estate.  But  the 
heirs  of  a  devisor,  who  has  devised  lands  to  other  persons,  are  not  necessary 
parties  to  a  suit  for  the  land,  under  adverse  claims.  Meriwether  v.  Hite.  2 
A.  K.  Marsh.,  181.  And  in  Georgia,  the  lands  of  a  deceased  debtor  are  liable 
in  equity  for  the  payment  of  his  debts,  without  making  the  heirs  a  party  to  the 
suit.  Telfair  v.  Kaf,  2  Cranch,  407.  In  New  York,  where  a  debt  is  specifically 
charged  by  the  will  of  the  testator  upon  certain  real  estate,  such  real  estate  is 
the  primary  fund  for  the  payment  of  such  debts,  and  the  heirs  at  law  are  not 
necessary  parties  to  the  suit.     Smith  v.  Wyckoff,  11  Paige,  49. 

'  Lacon  v.  Mcetins,  3  Atk.,  1;  Galson  v.  Emuss,  1  Coll.  C.  C,  243;  Ruther- 
ford v.  Green,  2  Ired.  Ch.,  121;  Jacobs  v.  Locke,  id.,  28(>;  Craig  v.  .Ttihnson,  3 
J.  .J.  Marsh.,  .")92;  Glaze  v.  Drayton,  I  Dessau. "s  Dj.,  10U;-Mori:an  v.  Morgan, 
3  Wheat.,  290;  Buck  v.  Buck,  11  Paige  Ch..  170;  Kobinson  v.  McDonald,  11 
Te.x.,  385;  Burger  v.  Potter,  32  111.,  66;  Moore  v.  Murrali,  40  Ala.,  .'>73;  New- 
ton v.  Swazey,  8  N.  H.,  9;  S.  C,  9  id.,  385;  to  the  contrary,  see  Shannon  v. 
Taylor,  16  Te.\  ,  412.  The  object  of  making  the  heirs  or  devisees  parties,  being 
to  divest  them  of  the  legal  title  which  immediately  vests  in  them  upon  the 
death  of  their  ancestor,  and  which  thev  were  bound  "to  convey  to  the  vendee  in 
a  proper  case.  Mitchell  v.  Shell,  49  >iiss.,  lis.  New  York  State  provides,  by 
statute,  that  the  "supreme  court  or  county  court  shall  have  power  to  decree 
and  compel  a  specific  performance  by  any  infant  heir,  or  other  person,  of  any 
contract  or  agreement  made  by  any  party  who  may  die  before  the  performance 
thereof;  on  the  petition  of  the  executors  or  administrators  of  the  estate  of  the 
deceased,  or  of  a  person  or  persons  interested  in  such  contract,  bargain  or  agree- 
ment, see  N.  Y.  Rev.  Stat.  (Gtli  ed.),  p.  200,  S;  113.  Where  the  executors  have 
power  to  .sell,  or  there  are  devisees,  the  heir  need  not  be  made  a  party  unless 
there  is  reasonable  ground  to  denv  the  validitv  of  the  will.  Spier  v.  Robinson, 
9  How.  Pr.,  325;  West  Hickory  >Kniug  A.^s.  v.  Heed.  80  Pa.  Stat.,  38.  In 
Iowa  the  statute  makes  the  executor  or  administrator  a  proper  party  to  an 
action  to  enforce  specific  performance  of  the  contract  of  a  deceasid  vendor, 
still  it  does  not  make  him  a  necessary  party.  Rev.  Stat,  of  Iowa.  Jlii  2400,  2461 ; 
Judd  V.  ;Morely,  30  Iowa,  423.  A  \n\\  was  brough  to  c(mipel  .-"pecitic  perform- 
ance of  an  agreement  to  a.ssign,  by  one  of  the  distributees  of  an  estate,  of  all 
his  interest  in  the  undivided  a.ssets  in  the  administrator's  hands.  HeM.  that 
all  the  distribiitces  are  necessary  parties.  Bogan  v.  Camp.  30  Ala.,  276.  All 
the  CO  heirs  of  a  deceased  vendor  should  join  in  a  bill  for  specific  performance 
of  a  contract  for  the  mutual  sale  of  land.  Where  one  of  the  parties  has  died, 
his  death  should  be  proved,  excusing  the  omLssion  of  not  raakmg  him  a  party 
to  the  bill.     Morgan  v.  ^Morgan,  2  Wheat.,  290. 


90  FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS, 

a  i)nrcliaser  lias  no  right  to  insist  on  having  the  will  proved 
against  the  heir,  he  is  not  a  necessary  party  where  there  are 
devisees  of  the  estate  in  question.  (</) 

§  191.  Formerly,  where  the  heir  was  an  infant,  a  diffi- 
culty arose  \{h)  but  this  lias  been  overcome  by  the  seventh 
section  of  the  trustee  act,  1850,  by  virtue  of  which,  where 
an  infant  is  seized  or  possessed  of  any  lands  upon  any  trust, 
it  is  lawful  for  the  court  to  make  an  order,  vesting  such 
lands  in  such  person  or  persons  in  such  manner  and  for  such 
estate  as  the  court  shall  direct ;(/)  and  under  the  thirtieth 
section  of  the  same  act,  the  court  is  enabled,  where  it  de- 
crees speciiic  performance  of  a  contract  concerning  any 
lands,  to  declare  that  any  of  the  parties  to  the  action  are 
trustees  of  the  lands  or  any  part  of  them.(,;)  It  has  been 
held  under  these  sections  that  where  the  contract  is  merely 
executory,  the  court  cannot,  on  petition  only,  declare  the 
heir  of  the  vendor  a  trustee  for  the  purchaser,  (^O  but  that  it 
can  do  so  where,  during  the  vendor' s  life,  the  contract  has 
been  executed  by  j^ayment  of  the  purchase-money  and  the 
execution  of  a  formal  covenant  to  surrender.  (Z) 

§  193.  Where  the  vendor  leaves  a  Avidow,  who,  but  for 
the  contract,  would  be  entitled  to  freebench,  the  contract 
may  be  enforced  against  her,  and  she  must  be  a  party  ;(??2') 
and  the  same  j^ractice  must  be  pursued  in  cases  of  dower  of 
widows  married  since  the  1st  of  January,  1834. (?i/ 

§  193.  AYhere  a  binding  contract  has  been  made  by  a 
vendor  who  subsequently  dies,  it  would  seem  that,  if  the 
executors  decline  to  enforce  the  performance,  or  to  compel 

(g)  Harris  v  Incrledew,  3  P  Wni8.,91;  Cot-        (j)  As  to  the  costs  of  the  Infant  heir,  see 

ton  V.  Wilson,  id.,  190;  VVabeman  v. Countess  Barker  v.Venables,  13  \V    R  ,  803. 
of  Kutlaml,  S  Ves.,  233;  Morrison  v   Arnold,        (A.)  Re  Carpenter,  Kay.  418. 
19id.,G70;  Beales  v.  Lord  Rokcby,  2  Mad.,        (/)  Re  Cuming.  L.  R.  5Ch.,72. 
227.  (m,  Hinton  v   Hinton,  2  Ves.  Sen  ,  631,  633; 

(h)  Bullock  V.  Bullock,  1  J.  &  W.,  603.  Brown  v.  Rainille,  3  Ves.,  256. 

(t)  Re  Howard,  5  De  G.  &  Sm.,  4:55.  (?i)  3  and  4  Wm  IV,  ch.  105. 


'  The  case  of  Johnson  v.  Legard,  here  cited,  does  not  seem  thoroughly  to 
establish  this  exception.  The  case  came  before  the  lord  chancellor,  on  appeal, 
and  judgment  affirmed.  The  creditors  of  a  vendor  had  filed  a  bill  against  the 
executors  and  heir  of  the  vendor  and  the  purchaser  for  specific  performance. 
Limitations  in  a  marriao:e  settlement  of  the  property  in  question  to  the  brothers 
of  the  settler  and  their  issue  were  held  to  be  merely  voluntary;  but,  under  the 
circumstances  of  the  case,  it  was  decided  that  a  purchaser  could  not  be  com- 
pelled to  take  the  estate  depending  on  the  validity  of  those  limitations.  On 
the  ground,  therefore,  that  a  good  title  could  not  be"  furnished,  the  bill  was  dis- 
missed; but  not,  however,  as  has  been  inferred,  solely  for  that  reason;  but  also 
because  the  agreement  for  purchase  was  suspicious,  "and  it  being  doubtful 
whetfier  tfie  creditors  could  file  such  a  bill." 


DEATH  OF  A  PARTY  TO  THE  CONTRACT.         91 

the  piircliaser  to  do  so,  an  action  may  be  brought  for  the 
purpose  of  executing  the  contract  hy  the  creditors  of  the 
deceased  vendor  against  the  executors  and  heir  of  the  vendor 
and  the  purchaser,  (o)' 

§  194.  In  a  case{p)  where  executors  of  a  vendor  of  lease- 
holds to  a  railway  company  filed  their  bill  for  specific  per- 
formance, alleging  (truly)  that  they  had  not  proved  the  will, 
but  before  the  hearing  of  an  interlocutory  motion  to  restrain 
the  company  from  continuing  in  possession,  the  probate  had 
been  obtained,  it  was  held  that  the  defendants  could  not  re- 
sist the  motion  on  the  ground  of  the  bill  being  demurrable. 

§  193.  If  the  purchaser  die  before  completion,  the  contract 
may  be  enforced  either  by  or  against  the  vendor  or  the  heir 
or  devisee  of  the  x^wi'chaser ;  the  personal  representative 
being  a  party  as  having  an  interest  in  disputing  the  con- 
tract, and  as  being  the  hand  to  pay  the  purchase-money  ;(g) 
and  the  heir  or  devisee  of  the  purchaser  being  a  party  as 
being  the  person  entitled  to  have  the  estate  conveyed  to 
him,  and  to  insist  on  a  proper  inquiry  into  the  title,  (r)' 

§  196.  The  heir  or  devisee  has  no  right  to  insist  on  the 
completion  of  a  purchase,  except  where  the  contract  is  such 
as  might  have  been  enforced  against  his  ancestor  or  testator; 
for  otlierwise  he  would  be  able  to  take  the  purchase-money 
from  the  personal  estate,  in  order  to  purchase  for  himself 

(o)  See  Johnson  v.  Legard,  T.  &  R.,  281;  1  were  made  parties;  ami  see  Holt  v.  Holt,  2 

Mad.  Ch.,  369.  Vern.,  322;  Brafleld  v.  Scriven,  22  W.  R.,  202 

(p)  Newton  v.  Metropolitan  Railway  Co.,  (decree  against  executor  with  costs). 

1  Dr.  &  Sra,,  583.  (r)  Townsend  v.  (jhampernowne,  9  Pri , 

(q)  Buckmaster  v.  Harrop,  7  Ves.,  341;  S.  130. 
C,  13  ill.,  456,  where  the  residuary  legatees 

1  This  is  undoubtedly  the  rule  (Champion  v.  Brown,  6  John.  Ch..  398),  ex- 
cept where  the  agreement  is  for  a  purchase  out  of  the  personal  estate.  In  this 
case  the  agreement  must  have  been  binding  upon  the  parties  contracting,  so 
that  the  property  was  converted,  in  equity,  before  death.  2  Story's  Eq.  Jur., 
§790.  Buckmaster  v.  Harrop,  7  Yes.,  341;  Broome  v.  Monck,  10  id.,  597. 
This  proceeds  on  the  principle  that,  in  equity,  money  agreed  to  be  laid  out  in 
land,  is  considered  as  land,  and  land  agreed  to  be  ttirned  into  money,  as  money. 
Stevenson  v.  Tandle,  3  Hayw.,  109;  2  Story's  Eq.  Jur.,  g^  "90,  791,  1212. 

*  Townsend  v.  Champernowne,  9  Price,  130;  Lord  v.  Uuderdunk,  1  Sandf. 
Ch.,  46;  Miller  v.  Henderson.  10  N.  J.  Eq.,  320.  As  to  making  heirs  of  de- 
ceased partner  parties,  see  Knott  v.  Stephens,  3  Oregon,  2()!>.  That  the  heirs, 
and  not  the  administrator,  should  file  a  bill,  see  House  v.  Dexter,  9  Mich.,  246; 
Webster  v.  Tibbitts,  li)  Wis.,  438.  As  to  making  the  executors  or  administra- 
tors of  a  deceased  vendee  parties.  Coke  v.  Evans,  9  Yerg. ,  289 ;  Peters  v.  Jones, 
35  Iowa,  512;  1  Danl's  Ch.  Pr.  (4th  amend,  ed.),  285;  Harding  v.  Handy,  11 
Wheat.,  104;  Downing  v.  Risley,  15  N.  J.  Eq.,  93;  Ashertz's  App.,  34  Pa  St., 
375;  Jackson  v,  iMcCoy,  56  Miss.,  78. 


92  FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

that  which  his  ancestor  was  not  bound  to  purchase,  and 
perhaps  never  would  have  iDurchased.(5) 

§  107.  In  a  case  where,  after  a  suit  had  been  instituted 
by  a  vendor  against  a  purchaser,  and  a  reference  of  title  and 
report  in  favor  of  it  had  been  made,  the  i^urchaser  died,  the 
court,  on  the  application  of  his  real  and  personal  represen- 
tatives, ordered  the  plaintiff  to  revive,  or,  in  default  thereof, 
that  his  bill  should  stand  dismissed,  {t) 

§  198.  Where  a  person  who  has  agreed  to  take  a  lease 
dies,  the  executors  admitting  assets  may  be  compelled  to 
take  a  lease,  the  covenants  being  so  qualified  as  that  the 
executors  shall  be  no  further  liable  thereon  than  they  would 
have  been  on  the  covenants  which  ought  to  have  been  en- 
tered into  by  their  testator. (?/^) 

§  199.  The  maxim  actio  personalis  moritur  cum  persona, 
has  no  reference  to  legal  proceedings  arising  from  contract. 
But  an  exception  to  the  devolution  of  the  liability  to  per- 
form contracts  by  the  death  of  one  of  the  parties,  arises  in 
all  cases  in  which  the  personal  skill  or  taste  of  one  of  the 
contracting  parties  is  required  ;  for  in  such  cases  the  death 
of  that  party  discharges  the  contract,  and  exempts  his  per- 
sonal representatives  from  liability  for  the  breach  of  con- 
tract occasioned  by  non-performance  after  his  decease  («) — 
an  exception  obviously  grounded  on  the  same  principle  as 
the  non-assignability  of  such  contracts,  hereafter  consid- 
ered, (w?)  On  this  principle  it  has  been  decided  that,  if  an 
author  contract  to  complete  a  work,  and  die  before  doing 
so,  his  executors  will  be  dischargnd  from  the  contract ;  {x) 
or,  if  a  master  contract  to  teach  an  apprentice,  and  die  be- 
fore the  expiration  of  the  term,  his  representatives  will  be 
equally  excused,  (2/)  And  in  one  case  a  contract  to  build 
a  lighthouse  was,  from  the  skill  and  science  involved  in  its 
performance,  held  to  be  a  personal  contract. (2')  This  prin- 
ciple would,  of  course,  apply  as  much  in  actions  for  specific 
performance  as  in  actions  for  damages. 

(s)  Uroome  v.  Monck,  10  Vcs.,  507;  Buck,  where  the  lease  had  been  executed  by  the 

master  v.  Uarrop,  13  id  ,  471,  472;  Savage  v,  It-ssor,  but  sot  by  the  lessee,  before  the  lat- 

Carroll,  1   Ball  &  B  ,  265,  281  ;    Garnett  v.  ter's  death. 

Acton,28  lleav., 333;  Collier  v.Jenkins.You  ,  (f)  Per    Lord    Wensleydale  in    Siboni  v. 

295.    Consl.ler  Ingle  v.  Klchards  (No.  1),  28  Klikman,  1  M.  &  W.,  423. 

Beav.,  361,  364.  (lo)  see  infra,  §  203. 

(0  Norton  v  M'hlte,  2  De  G.  M.  &  G.,  678.  (.c)  Marshall  v.  Broadhurst,  1  Tyrw.,  349; 

(M)  Phillips  V.  Everard,  5  Sim.,  102;  Ste-  S.  <J.,  1  Crompt.  &  Jer  ,405 

phens  V.   Ilotham,  I  K.  &  J.,571.    See,  also.  (j/)  Baxter  v.  Burfleld,  2  Sir,  1266. 

Page  V.   Broom.  3  Beav.,  36.     Distinguish  (z)  Per  Patteson,  J.,  in  Wentworth v.  Cock, 

Blosee  v.  Prendergast  (13  Ir.  Ch.  R.,  373),  10  A.  &  E.,  45. 


ASSIC.NMENT  OT  THE  (  ONTltACT.  93 


CHAPTEl;    IV. 

OK  AX  ASSIGNMENT  OF  THE  < oN  ri:.\(  T  oU  OF  THE  IMtnl'Ei:'!  Y, 

§  !!jOO.  As  a  general  iiile,  rlif  bmelit  of  a  coiiti-act  may 
be  assigned  in  equity,  and  tlie  assign  can  enforce  six^citic 
performance  of  it,  making  liis  assignor  a  party. (//)'     Thus, 

(«)  Of  courflc,  If  a  new  contract  has  been    the  assUnor  1«  not  a  necc»»arv  party  to  an 
come  to  between  the  Bsaiunee  and  the  person    action  brought  on  the  new  conlntct. 
TTho  originally  contracted  with  the  assignor, 


'  WLltc  a  coutruct  has  been  ussi!,nieil.  thi'  a.s.sij,'iH'e  cannot  Ik.-  coiuiH.-lle«l  to 
perform;  there  is  no  contract  between  the  venih^r  and  tlie  assignee.  It  nuikes 
no  dilTerente  that  payments  have  been  made  by  tlie  assi;,'nee  Tht-  vendor 
must  enforce  tlie  agreement  against  the  original  vendee.  Corbu>i  v.  Tweiil.  09 
111.,  '20.").  In  Hanna  v.  Wilson,  3  Dratt.,  '2*Xi.  it  was  held  that  the  »iA.sigiiec 
mi'dit  maintain  an  action  for  specific  performance  against  the  vendor,  provided 
thcf  assignor  was  made  a  party.  Where  the  a.'isigiimeiit  is  ab.solute,  and  the 
assignor  has  no  equitable  interest,  he  need  not  be  made  a  party.  Urace  v.  llar- 
rin-'ton,  2  Atk.,  'JoS;  Tneothick  v.  Austin,  4  .Mason,  41;  \\hitney  v.  McKin- 
nev  7  John.  Cli..  1-14;  .Miller  v.  Hear.  :J  Paige's  Ch..  4(57;  Colenick  v.  Hou|k.t. 
3  liid  .  310;  Miller  v.  Wliittier,  32  Me.,  2U3;  Currier  v.  Howard,  14  Gray.  511 
Tlie  assignee  of  one  of  several  obligees,  in  a  bond  for  the  conveyance  of  real 
property,  commenced  an  actiim  and  subsctpiently  acquired  the  interest  of  all 
the  obligees  iu  the  bond.  Such  action  was  no  bar  to  a  subst-ipient  action  for 
specific  perfomnance,  where  the  8umc  parties  were  interest,  d  concerning  the 
same  prop<rtv.  Knott  v.  Stevens,  3  Oregon,  23").  When-  the  original  parties 
to  a  contrael  would  he  entitled  to  a  decree  of  .specitic  performance,  all  parties 
who  claim  under  them  have  their  rights,  always  provided  that  no  eqiilies  in- 
tervene. Ilavs  V.  Hall,  4  Porter,  374;  Mc .Morris  v.  Cniwfonl,  l.'i  .Via..  271; 
Ewins  v.  Gordon,  4'J  N.  II..  444.  .V.  sold  land  to  »..  and  reserved  a  right  of 
way.  B.  executed  a  bond  to  A  ,  agreeing  to  make  the  i>a!isage-way  on  den 
after  a  given  time.  The  land  was"  afterwards  sold  to  C,  subject  to  th<- 
vation.  H.  and  C.  were  reipiested  to  make  the  passjige-way.  and  n  ' 
<lo  so.     Held,  that  the  bond  was  a  ])er.son:il  obligation,  and  that  H.,  I 

the  land,  could  not  be  c(mi|Klled  to  .spccitically  perform.     Smith  v.  i.  .     '■. 

;Me.,  (U.  A  lease  was  a.ssigned,  which  had  in  it  a  covenant  for  renewal.  Meld, 
that'  the  assignee  could  maintain  an  action  for  renewal,  lus  against  the  covenantor 
Robinson  v.  Perry,  21  Ga..  1S3.  The  as.signee  of  a  chattel  recei veil  the  legal 
title  subseciuent  to  the  making  of  a  contract  respecting  the  same  proiH-riy 
which  did  not  pa-ss  the  legal  nl>r  tin-  e<iuitable  title.  Held,  that  a  court  of 
equity  will  not  decree  specitic  i)erforniance  against  the  assignee,  notwithstand- 
ing he  acquired  with  notice.  MauUleii  v.  Armistead.  IS  .Via.,  500.  As  to  the 
power  of  an  a.^.siiriic- of  a  chose  in  action  to  .sue  at  law  in  Massachuscll*.  sec 
Walker  v.  Brooks,  125  .Mas.s..  241. 

Who  HhouUl  join  in  action  f}  Where  a  contract  has  l>een  luisigned.  all  the 
a.ssignees,  through  whose  hands  it  has  passed,  should  Iw  joinwl  in  an  action  for 
specirtc  performance.  Estill  v.  Clay.  2  A.  K.  Marsh..  4y7;  Allison  v.  Shilling. 
27Te.\.,  450. 

A!<Kigntr  in  haukniptn/,  when  a  }>arty.]  The  ventlor  of  land  execute»l  a  1h)IuI 
for  title,  but  did  not  receive  the  whole  of  the  purchase  money,  and  afterwartls 
became  bankrupt.     Held,  that  his  assignee  in  bankruptcy  was  a  pn>tH'r  parly 


94  FliY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

for  example,  where  tliore  was  a  contract  for  a  lease,  which 
contained  nothing  to  show  that  it  was  made  with  the 
assignor  (who  had  become  insolvent)  from  any  personal 
motive,  and  the  assign  was  solvent,  the  contract  was  en- 
forced in  favor  of  the  assign.  (^*)'     Similarly,  where  there  is 

<}A  PrnBi>iP  V    Tookp    1   Mv    &  K.,  431;  except  upon  the  temis  Of  the  assignor  entcr- 

il'or^nnv  HY^odJ,TtiiE     But  see  Dowell  Ing  rnto  the  covenants  of  the  lease     This 

"  Dew.  1  Y.  &  c:  C.  C.  345.  where  Knight  ^ec.«on  was  a&rmedbv  Lord  Lynd 

Bruce,  V.  C.  refused  to  grant  specific  perfor-  12  L.  J .  Ch  ,  153.    bee  mrra,  fe  JJD. 
mance  of  a  contract  for  a  lease  to  an  assignee, 

defendant,  and  must  be  so  made  in  an  action  for  specific  performance  of  the 
contract  to  convey.     Lampson  v.  Rouse,  65  N.  C,  34. 

Where  property  is  sold  under  a  decree.^  Wliere  property  is  sold  under  a  valid 
decree  the  purchaser  of  a  vendor's  title  stands  in  his  shoes,  and  may  maintain 
an  action  for  specific  performance  against  the  vendor.  He  may  tile  a  bill  to 
sell  the  premises  in  default  of  payment,  and  may  discharge  himself  from  the 
vendee's  equities.  The  vendee,  however,  has  no  right  to  a  decree  of  sale  agamst 
the  vendor  for  the  purpose  of  paying  the  unpaid  purchase  money.  Fitzhugh 
V  Smith,  62  111.,  486  After  execution  against  the  vendee,  see  Tomlinson  v. 
Blackburn,  2  Ire'd.  Eq.,  50«J. 

Assigjiee's  liubilily  with  notice;  rule.']  A  party  having  entered  into  an  agree- 
ment for  the  sale  of  property,  and  afterwards  assigns  the  same,  or  contracts  to 
do  so  to  a  person  having  notice  of  the  original  contract.  Held,  that  the  assignee 
would  be  liable  to  perform  it  at  the  suit  of  the  purchaser.  All  parties  claiming 
any  interest  in  the  land,  obtained  after  the  date  of  the  contract  sought  to  be 
specifically  enforced  with  notice,  are  necessary  parties  to  the  action  to  compel 
conveyance.  Hersey  v.  Gillett,  18  Beav.,  174;  Foss  v.  Haynes,  31  Me.,  81; 
Lanerty  v.  Moore,  33  N.  Y.,  658;  New  Barbadoes  Bridge  Co.  v.  Vreeland,  4 
N.  J.  Eq.  (3  Green),  157;  Morris  v.  Hoyt,  11  Mich.,  9;  Seager  v  Burns,  4  Minn., 
141;  Stone  v.  Buckner,  12  Smed.  &  Marsh.  73;  Scarborough  v.  Arrant,  25 
Texas,  129;  Fullerton  v.  McCurdy,  4  Lans.  (N.  Y.),  132.  Notice  to  an  agent 
is  notice  to  the  principal.  Bryant  v.  Booze,  55  Ga.,  438.  As  to  liability  with 
notice,  see  Bird  v.  Hall,  30  Mich.,  374. 

Deed  hell  as  escrow.']  A.  held  a  deed  as  an  escrow,  and  refused  to  deliver  it. 
Held,  that  he  was  a  proper  party  in  an  act  for  specific  performance  of  the  in- 
strument.    Davis  v.  Henry,  4  W.  Va.,  571. 

Equitable  title;  action  by  holder.']  The  holder  of  an  equitable  interest  in  land 
contracted  to  convey  an  interest  in  the  same  subject  to  the  approval  of  the 
owner,  but  with  his  knowledge.  The  purchaser,  at  great  expense,  improved 
the  value  of  the  property.  Held,  that  the  contract  would  be  enforced,  subject 
to  the  rights  of  the  holder  of  the  legal  title  for  a  sum  due  him.  Booders  v. 
Murphy,  78  111.,  81. 

>  A.,  being  the  owner  of  a  tract  of  land  supposed  to  contain  minerals,  on  the 
21st  of  January,  1839,  by  a  written  instrument  granted  liberty  to  B.  to  dig  a 
mine  on  such  land,  and  to  carry  away  any  mineral  which  he  might  dig  thereon 
within  one  year;  and  B.,  on  the  11th  of  May,  1839,  by  a  writing  signed  by  him 
on  the  back  of  such  instrument,  assigned  to  C.  all  his  interest,  right  and  privi- 
lege in  the  land  therein  mentioned,  with  the  appurtenances,  and  all  the  benefit 
and  advantages  derivable  from  such  instrument;  after  which  B.  brought  a  bill 
in  chancery  against  A.  for  specific  performance  of  the  agreement.  Held,  1st, 
that  the  agreement  was  not  of  a  fiduciary  character,  or  in  the  nature  of  a  per- 
sonal confidence,  so  as  to  be  incapable  of  assignment;  nor,  2d,  was  the  interest 
of  B.  of  that  uncertain  and  contingent  kind,  that  it  could  not  on  that  account 
be  transferred;  and  consequently  that  B.  having  parted  with  all  his  interest  in 
the  subject  of  the  bill,  it  ought  for  that  reason  to  be  dismissed.  Gaston  v. 
Plum,  14  Conn.,  344.  The  captain  of  a  steamboat,  as  such,  entered  into  a  con- 
tract for  carrying  the  mails  on  board  the  boat,  and  afterwards,  freely  and 
fairly,  assigned  it  to  the  owners  of  the  boat,  by  an  instrument  under  his  hand 


ASSIGNMENT  OF  THE  CONTRACT.  95 

nothing  personal  in  the  contract  or  the  motives  to  it,  a  per- 
son who  has  appeared  as  agent  may  afterwards  disclose  him- 
self as  a  principal,  and  enforce  the  contract  in  his  own  name  (c) 
And  where  A.  contracted  for  an  estate  from  B.,  A.  having 
previonsly  agreed  with  C.  to  sell  the  estate  to  him,  and  B. 
resisted  performance  on  this  amongst  other  grounds ;  the 
price  being  adequate,  and  B.  not  suggesting  that  he  had 
ever  refused,  or  was  unwilling,  or  would  have  objected  to 
treat  with  C,  or  might  have  obtained  better  terms  from 
him,  had  he  knoAvn  the  real  circumstances  of  the  case, 
specific  performance  was  granted  at  the  suit  of  A.  and  C.{d) 
§  201,  An  assign  of  a  contract  by  waj^  of  mortgage  may 
enforce  his  security  by  means  of  specific  performance. 
Thus,  in  a  case  decided  by  Lord  Hatherley  (then  Wood, 
V.  C),  where  A.  had  agreed  to  sell  certain  projierty  to  B,, 
and  then  had  mortgaged  his  interest  under  this  contract  to 

(c)  Fellowes  v.  Lord  Gwydyr,  1  R.  &  My.,       (d)  Nelthorpe  v.  Holgate,  1  Coll ,  203. 
S3. 

• 

and  seal.  Held,  that  the  assignment  was  valid,  and  that  the  captain  was  estop- 
ped from  denying  that  the  contract  was  assignable.  Roorback  v.  North  River 
Steamboat  Co.,  tt  John.  Ch.,  469  The  purchaser  at  a  master's  sale  may  assign 
his  bid  before  the  execution  of  the  master's  deed ;  and  on  application  by  the 
assignee,  the  court  will  direct  a  conveyance  immediately  to  liim.  Proctor  v. 
Farnan,  5  Paige,  614.  In  New  York,  any  estate  in  personal  property,  and  a 
mere  possibility  when  coupled  with  an  interest  in  real  estate,  has  always  been 
assignable.  Lawrence  v.  Bayard,  7  Paige,  70.  So  may  an  assignee  of  an 
assignee  of  a  copartner  in  a  joint  purchase  and  sale  of  lands,  sustain  a  bill  in 
equity  against  the  other  copartners ;  and  the  agent  of  the  partnership  to  compel 
a  discovery  of  the  quantity  purchased  and  sold,  and  for  an  account  and  distri- 
bution of  the  proceeds.  Pendleton  v.  Hambersie,  4  Cranch,  73.  In  McKee  v. 
Hoover,  1  Monroe,  32,  it  is  held  that  a  contract  by  one  person  to  serve  another 
for  a  certain  length  of  time,  imposes  on  him  an  obligation  of  servitude,  and 
such  contract  may  be  assigned  so  as  to  transfer  the  term.  But  perhaps  the  case 
is  somewhat  at  variance  with  other  opinions.  See  Davenport  v.  Gentry',  y  B. 
Monr.,  427.  The  right  to  reclaim  usury  is  assignable  in  equity.  Brtckeuridge 
V.  Churchill,  3  J.  J.  Marsh.,  11.  The  claim  to  a  legacj"  is  strictly  an  equitable 
claim,  and  the  whole  interest  therein  may  be  passed  by  the  legatee  by  an  assign- 
ment. King  V.  Berry,  2  Green's  Ch. ,  44.  Entries  of  land  are  assignable  in 
Kentucky;  but  not  in  Virginia,  though  warrants  and  surveys  may  be  so  passed. 
Hart  V.  Benton,  4  Bibb,  420,  and  3  id. ,  534.  In  Alabama,  a  widow  may  assign 
her  interest  in  her  husband's  estate,  and  such  assignment  is  sufficient,  in  equity, 
to  pass  such  interest  to  the  assignees.  Powell  v.  Powell,  10  Ala  ,  900.  An 
order  drawn  by  a  legatee  for  value,  on  the  executor  for  the  amount  of  his 
legacy,  payable  out  of  the  fund  provided  by  the  testator  for  that  purpose,  is  an 
equitable  assignment  of  the  legacy.  Anderson  v.  De  Soer,  0  Gratt.,  363.  And 
in  Nimmo  v.  Davis,  7  Texas,  26,  it  is  said  that  all  contingent  and  executory 
interests  may  be  assigned  in  equity,  and  will  be  enforced  if  made  for  a  valuable 
consideration;  and  all  contingent  estates  of  inheritance  as  well  as  springing  and 
executory  uses  and  possibilities,  coupled  with  an  interest,  if  the  person  to  take 
is  certain,  are  transmissible  by  descent,  devisable  and  assignable.  But  it  has 
been  said  that  a  contract  is  only  assignable  when  the  entire  interest  therein  can 
pass  by  the  assignment,  both  legal  and  equitable.  White  v.  Buck,  7  B.  Monr., 
546. 


96  FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

C,  and  C.  had  assigned  his  mortgage  to  D.,  it  was  held 
tliat  D.  (submortgagee)  might  maintain  a  bill  against  the 
purchaser  B.  for  the  performance  of  the  original  contract 
between  him  A.(d) 

JJ  •20'J.  The  assignability  of  contracts  in  equity  is,  how- 
ever, subject  to  some  exceptions  and  limitations,  which,  for 
the  most  part,  fall  under  one  or  other  of  the  following 
classes,  viz. :  (1)  where  the  contract  is  personal ;  (2)  where 
the  contract  contains  a  provision  against  assignment ;  and 
(3)  wliere  the  assignment  is  illegal  or  contrary  to  public 
policy. 

§  2{0:i.  (1)  It  is  an  obvious  principle,  that  where  the  learn- 
ing, skill,  solvency,  or  any  personal  quality  of  one  of  the 
parties  to  the  contract  is  a  material  ingredient  in  it,  then 
tlie  contract  can  be  performed  by  him  alone.  It  may  be  a 
matter  of  indifference  to  A.  whether  B.  or  C.  be  the  pur- 
chaser of  the  stock  or  paid-np  shares  he  is  selling;  but  it  is 
a  matter  of  great  moment  whether  a  distinguished  artist,  or 
his  nominee,  paint  a  picture  for  which  A.  may  have  agreed 
to  pay  a  certain  sum.  Accordingly,  in  the  case  of  contracts 
of  the  latter  kind,  it  is  not  competent  to  a  person,  who  has 
appeared  as  agent  for  a  principal  on  whose  personal  quali- 
ties reliance  has  been  placed,  to  show  himself  to  be  the  prin- 
cipal and  to  sue  in  his  own  name;(/)  in  respect  of  such 
contracts  bankruptcy  confers  no  claim  on  the  trustee  ;(5') 
and  the  benefit  of  such  contracts  is  incapable  of  being 
assigned.  (^) 

§  204.  Thus,  where  a  contract  established  a  personal  rela- 
tion between  an  author  and  his  publisher,  it  was  held  that 
it  was  incapable  of  assignment,  (i)  So  where  a  coachbuilder 
contracted  with  A.  to  supply  him  with  a  chariot  for  live 
years,  and  within  that  period  the  coachbuilder  assigned  the 
contract  to  a  third  person,  it  was  held  that  A.  had  a  right 
to  have  the  benefit  of  the  judgment  and  taste  of  the  coach- 
builder to  the  end  of  the  term,  and  conseqnently  that  an 
action  brought  by  the  coachbuilder  and  his  assign  against 

(e)  Browne  v.  London  Necropolis  Co.,  6  W.  Mayor  of  Exeter,  1  Eq.  Cas.  Abr.,  53  (and  the 

R.,  188.    In  this  case,  however,  specific  per-  notes  to  Hovenden's  edition  of  Freeman,  vol. 

formance  was,  on  another  ground,  refused.  2,  p.  153);  also  Vandenanker  v.  Desbrough.a 

(/)  Per  Alderson,  B.,  in  Rayner  v.  Grote,  Vern.,  96;  Moyses  v.  Little,  id.,  194. 

15  M.  &  \V.,  365.    See  supra,  §  199.  (h)  Distinguish  Jalabert  v.  Duke  of  Chan- 

(g)  Per  Lord  Abinger,  C.  B.,  in  Gibson  v.  clos,  1  Eden,  372  (keepershlp  of  walks). 

Carnithers,  8  M.  &  W.,  343.    Cf.  Drake  v.  (i)  Stevens  v.  Benning,  l  K.  &  J.,  168. 


ASSIGNMENT  OF  THE  CONTRACT.  97 

A.  could  not  be  maintained. (/)  So,  also,  where  a  lessee  in 
insolvent  circnmstances  suffered  another  person  to  become 
the  apparent  owner  of  the  farm,  but  with  a  secret  trust  for 
himself,  and  the  landlord,  supposing  the  trustee  to  be  the 
rightful  owner,  and  trusting  to  his  solvency,  entered  into  a 
contract  with  him  to  grant  him  a  new  lease— in  a  suit  by 
the  original  lessee  against  the  landlord,  specific  performance 
of  this  contract  was  refused,  the  court  considering  that  the 
landlord  had  entered  into  it  expecting  to  have  the  covenants 
of  a  man  of  substance,  Avhich  he  could  not  do,  as  there 
would  be  no  equity  to  compel  the  trustee  to  enter  into  the 
covenants.  (>l-)  And  so  again,  if  a  landlord  trusts  to  the  skill 
of  a  person  who  is  in  fact  a  secret  trustee,  he  will  not  be 
obliged  to  execute  the  contract  for  the  cestui  que  trust.  (I) 

§  205.  How  far,  in  the  case  of  an  ordinary  contract  for  a 
lease,  the  intended  lessor  relies  on  the  solvency  of  the  in- 
tended lessee  as  a  personal  qualification,  is  a  point  on  which 
somewhat  different  views  have  been  taken.{my  But  it  ap- 
pears to  be  now  clear  from  the  judgments  of  Lord  Lyndhurst 
and  Lord  Chelmsford  that  such  contracts  are  assignable  and 
may  be  enforced  by  the  assign,  (ti) 

§  206.  Again,  it  is  presumably  clear  that  if  A.  owed  B. 
£1,000  and  B.  then  agreed  to  buy  from  A.  an  estate  for 
£2,000,  no  assign  of  A.  could  sue  B.  for  performance  except 
upon  the  terms  of  giving  B.  the  benefit  of  the  set-off  of 
£1,000.  (o) 

§  207.  Again,  where,  though  the  relation  established  by 
the  contract  may  have  in  it  nothing  j)ersonal,  some  previous 
personal  relation  of  favor,  or  otherwise,  between  the  con- 

(j)  Robson  V.  Drummond,  2  B.  &  Ad.,  303.  also,  Stocker  v.  Dean,  16  Beav.,  161,  where, 

(k)  O'Herlihy  v.  Hedges,  1  Sch.  &  Lef.,  125.  Irom  the  personal  nature  of  acts  to  be  done, 

(l)  S.  C;  per  Grant,  M.  R.,  in  Featherston-  a  right  of  pre-emption  was  held  to  be  limited 

angh  V.  Fenwick,  17  Ves.,  313.  to  the  life  of  the  person  who  had  to  do  them. 

(771)  Crosbie  v.  Tooke,  Morgan  v.  Rhodes,  (w)  12  L.  J.  Ch..  104;  Id,  2  Ch.,  71. 

Dowell  V.  Dew,  supra,  §  200;  Buckland  v.  (o)  Boulton  v.  Jones,  2  H.  &  N.,  564. 

Papillon,  L.  R.  1  Eq.,  477,  2  Ch.,  67.    See, 

'  In  Illinois,  a  note  payable  in  mason  work  is  not  assignable,  so  as  to  enable 
the  assignee  to  maintain  an  action  thereon  in  his  own  name.  Ransom  v.  Jones, 
1  Scam.,  291.  So  where  a  person  received  the  use  and  occupancy  of  a  farm, 
during  his  parents'  lives,  from  a  town,  with  a  promise  to  give  a  deed  upon  their 
decease,  upon  condition  that  he  would  support  his  father,  mother  and  idiotic 
brother,  the  contract  was  held  not  to  be  assignable.  Clinton  v.  Fly,  1  Fairf., 
293.  A  parol  license  to  be  exercised  upon  the  land  of  another,  is  a  mere  per- 
sonal trust  and  confidence,  and  as  such,  cannot  be  assigned,  although  it  may  be 
binding  as  between  the  parties,  it  will  not  pass  to  the  purchaser.  Cowles  v. 
Kidder,  4  Foster  (N.  H.),  394. 

7 


98  FKY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

tracting  parties  has  been  a  material  motive  to  the  contract, 
it  can  be  enforced  by  that  person  only,  and  not  by  a  con- 
cealed cestui  que  trust  or  principal  or  assign.  This  is  illus- 
trated by  the  case  of  Phillips  v.  Duke  of  Buckingham  \{'p) 
a  negotiation  had  been  entered  into  between  the  plaintiff 
and  the  duke  for  the  purchase  of  an  estate  by  the  plaintiff, 
which  had  gone  off ;  the  plaintiff  then  got  the  secretary  of 
Lord  Chancellor  Nottingham  to  enter  into  a  ut^gotiation  on 
his  behalf,  but  pretending  it  to  be  for  the  lord  chancellor, 
or  his  son  the  solicitor-general ;  the  duke  had  several  cases 
depending  in  chancery,  and,  wishing  to  oblige  the  lord  chan- 
cellor, entered  into  articles  ;  but  on  discovering  who  was  the 
real  purchaser,  refused  to  complete  ;  according  to  the  report 
In  Vernon,  the  plaintiff' s  bill  was  dismissed,  and  the  case  is 
considered  an  authority  for  the  princix^le  established  by 
such  dismissal ;  for,  though  it  appears  that  specific  perform- 
ance was  ultimately  granted,  it  seems  to  have  been  only  on 
payment  by  the  j^laintiff  of  the  full  value  of  the  estate, 
being  a  sum  greater  than  that  originally  agreed  on.  ((7)  Lord 
Thurlow  showed  an  inclination  to  disregard  these  personal 
motives,  considering  it  to  be  immaterial  in  a  contract  for  an 
annuity,  that  the  defendant  was  in  fact  a  trustee  for  the  son 
of  the  j)laintiff,  with  whom  he  had  refused  to  deal.(r)  But 
Lord  Eldon  exi)ressed  dissatisfaction  with  that  decision  \{s)^ 
and  the  law  seems  now  to  be  that  where  one  person  is  de- 
ceived as  to  the  real  party  with  whom  he  is  contracting,  and 
that  decei^tion  either  induces  the  contract  or  renders  its 
terms  more  beneficial  to  the  deceiving  party,  or  more  oner- 
ous to  the  deceived,  or  w^here  it  occasions  any  other  loss  or 
inconvenience  to  the  deceived  party,  there  the  contract  can- 
not be  enforced  against  him  ;  but  that  where  none  of  these 
circumstances  can  be  show^n  to  follow  from  the  deception, 
the  contract  may  be  enforced.  (^) 

§  208.  "Does  error  in  regard  to  the  person  with  whom  I 
contract,"  asks  Pothier,('?(^)  "destroy  the  consent  and  annul 
the  contract  \    I  think  that  this  question  ought  to  be  decided 

(p)  1  Vern.,  227.    See,  also,   Harding   v.  (r)  Lord  Irnham  v.  Child,  1  Bro.  C.  C,  92. 

Cox,  id.,  n.  See,  also,  Jordan  v.  Sawkins,  1  Ves.  Jun.,  402. 

(q)  See  Ralthby's  note  (quoting  the  Reg.  (s)  Bonnet  v.  Sadler,  U  Ves.,  528. 

Lib.)  at  p.  229  of  vol.  1  of  his  edition  of  Ver-  {t)  Fellowes  v.  Gwydyr,  1  Sim.,  63;  1  R.  & 

non.   And  see  the  casein  Vernon,  1  St  Leon.  My.,  83. 

Vend.,  349,  n  (10th  ed.).    See,  also,  Scott  v.  (u)  Traite  des  Obligations,  §  19.  See  Smith, 

Langttaffe,  cited  Lofft.,  797.  v.  Wheatcroft,  L.  R.  9  Ch.  D.,  223. 


ASSIGNMENT  OT  THE  CONTRACT.  99 

by  a  distinction.  "Whenever  the  consideration  of  the  iDerson 
with  whom  I  am  willing  to  contract  enters  as  an  element 
into  the  contract  which  I  am  willing  to  make,  error  with 
regard  to  the  person  destroys  my  consent,  and  consequently 
annuls  the  contract.  ^  *  *  On  the  contrary  where  the 
consideration  of  the  person  with  whom  I  thought  I  was  con- 
tracting does  not  enter  at  all  into  the  contract,  and  I  should 
have  been  equally  ^^"illing  to  make  the  contract  with  any 
person  whomsoever  as  with  him  with  whom  I  thought  I  was 
contracting,  the  contract  ought  to  stand." 

§  209.  The  same  principle,  of  course,  ax)plies  to  assign- 
ments. So  where  a  contract  for  a  lease  was  entered  into  by 
a  lady  with  her  son-in-law  for  his  personal  accommodation 
in  the  mansion  house  and  demesne  lands,  in  the  nature  of  a 
family  transaction,  the  court  refused  specific  performance 
at  the  suit  of  his  assignees  in  bankruptcy.  (^') 

§  210.  (2)  Where  the  contract  stiiDulates  that  the  instru- 
ment to  be  executed  in  performance  of  it  shall  contain  a 
proviso  against  assignment,  this  oj)erates  to  prevent,  not 
only  an  assignment  of  the  interest  when  perfected,  but  also 
of  the  contract  to  grant  it.  (ic)  But  the  benefit  of  the  proviso 
may,  of  course,  be  waived  for  the  purposes  of  specific  per- 
formance ;  as  where  the  assign  of  the  intended  lessee  was 
recognized  by  the  intended  lessor  as  tenant,  (.r) 

§  211.  (3)  The  statute,  32  Henry  VIII,  ch.  9,  which  is 
entitled  the  bill  of  bracery  and  buying  of  titles,  prohibits 
any  person  from  selling  or  buying  any  pretended  rights  or 
titles  to  any  lands,  except  the  vendor  has  been  in  possession 
of  the  same,  or  of  the  reversion,  or  in  receipt  of  the  rents 
thereof,  for  a  year  before  the  sale ;  but  it  provides  that  it 
shall  be  lawful  for  the  person  in  possession  to  buy  in  any 
pretended  title.  In  Sharp  v.  Carter,  (2/)  and  Hitchens  v. 
Landor,(^)  pleas  founded  on  this  statute  were  allowed.  In 
a  case  (a)  before  the  court  of  common  pleas,  A.  the  owner 
of  a  term  died  in  1828,  and  B.  his  brother,  who  had  previ- 
ously been  in  possession  of  part  of  the  premises,  then  took 
possession  of  the  whole,  and  continued  so  until  1829,  when 

(v)  Flood  T.  Finlay,  2  Ball  &  B.,  9.  (2)  G.  Coop.,  34.    See,  also,  WaU  v.  Stubbs, 

(w)  Weatherall  v.  Gearing,  12  Ves.,  .504;  cf.  1  Mad.,  SO;  S.  C,  2  V.  &  B.,  354. 

Jalabert  v.  Duke  of  Chandos,  1  Eden,  .372.  (a)  Doe  d.  Williams  v.  Evans,  1  C.  B.,  717. 

{X)  Dowell  V.  Dew,  1  Y.  &  C.  C.  C,  345;  12  See,  also,  per  Montague,  C.  J.,  in  Partridge 

L.  J.  Ch.,  158.  V.  Strange,  Plowd.,  88. 

(2/)  3  P.  Wms.,  375. 


100        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

he  died,  leaving  all  his  interest  in  the  property  to  C,  who 
thereupon  entered  and  remained  in  undisputed  possession 
until  1841,  when  D.,  a  brother  of  A.,  the  original  termor, 
took  out  administration  to  him,  and  sold  his  interest  in  the 
property,  as  such  administrator,  for  £10,  the  transaction 
was  held  to  be  void  both  by  the  common  law  and  under  the 
statute.  AVherever  a  contract  gives  rise  to  a  pretended  right 
or  title  to  any  lands  and  to  nothing  more,  the  assignment  of 
such  a  contract  would  be  within  the  statute. 

§  ^12.  But  a  transfer  of  an  expectancy  is  not  within  the 
mischief  of  the  statute  ;  for  the  sale  of  an  expectancy  is  not 
an  allegation  of  any  present  right  or  title,  but  of  the  possi- 
bility of  one  thereafter  to  exist.  (&) 

§  213.  The  principle  on  which  the  statute  of  Henry  YIII. 
is  founded,  and  which  gives  rise  to  the  doctrines  of  cham- 
perty and  maintenance,  namely,  that  persons  ought  not  to 
be  allowed  to  come  in  for  the  mere  purpose  of  litigating 
rights  which  others  are  not  disposed  to  enforce,  applies  to 
render  void  some  cases  of  assignment  which  are  not  strictly 
within  the  above  statute.     Thus,  whilst  it  is  clearly  laAvful 
to  assign  a  right  at  the  time  undisputed,  and  if,  from  cir- 
cumstances afterwards  discovered,  a  necessity  arises  for  liti- 
gation against  third  parties,  the  assign  may  maintain  his 
action  ;  (c)  yet  it  is  as  clearly  against  public  policy  to  allow 
of  the  assignment  of  a  mere  naked  right  to  bring  an  action 
for  a  matter  in  dispute.  (rZ)    On  this  ground  the  Irish  court 
of  chancery  refused  its  assistance  to  enforce  the  perform- 
ance of  a  contract  by  a  person  out  of  possession,  to  grant  a 
present  lease  to  a  person  who  was  at  the  time  apprised  that 
he  could  not  obtain  possession,  except  by  a  suit.(e)'     "  I  do 
not  hesitate  to  say,"  said  Turner,  L.  J.,(/)  "that,  in  my 
opinion,  the  right  to  complain  of  a  fraud  is  not  a  marketa- 
ble commodity,  and  that  if  it  appears  that  an  agreement  for 
purchase  has  been  entered  into  for  the  purpose  of  acquiring 

(b)  Cook  V  Field,  15  Q  B.,  460  that  the  Btatemeiat  In  the  text  does  not  apply 

(c)  Wilson  V.  Short,  G  Ha. ,  366.  to  a  trustee  in  bankruptcy.  Seear  v.  Lawson, 

(d)  Prosser  v.  Edmonds,  1  Y.  &  C.  Ex.,  15  Ch.  D.,  426.                      -,,  „   „.  t>     o-o     t 
481.    With  the  distinction  between  this  and  (e)  Bayly  v.  Tyrrell, -2  Ball  &  B.,  oo8.    In 
the  preceding  case,  compare  the  distinction  this  case  the  lease  to  the  plaintiff  had  been 
between  furnishing  evidence  for  the  recovery  actually  executed.                        ^    t.   o  /^u 
of  property  without  a  view  to  litigation,  and  (/)  In  De  Hoghton  v.  Money,  L,.  K.  2  Ch., 
furni'hing  evidence  to  maintain  litigation  169;  affirming  S.  C  ,  L.  R   1  Eq.,  154. 
(Sprye  v    Porter,  7  El.  &  Bl.,  58),  and  note 


1  See  Marshall  v.  Means,  13  Geo.,  61. 


ASSIGNMENT  OF  THE  CONTKACT.  101 

such  a  right,  the  purchaser  cannot  call  upon  this  court  to 
enforce  specific  performance  of  the  agreement.  Such  a 
transaction,  if  not  in  strictness  amounting  to  maintenance, 
savors  of  it  too  much  for  this  court  to  give  its  aid  to  enforce 
the  agreement." 

§  214.  Upon  principles  of  public  policy  contracts  by 
which  railway  or  public  comj^anies  seek  to  devolve  busi- 
ness, or  delegate  powers,  with  which  they  are  entrusted,  on 
persons  to  whom  the  legislature  has  not  entrusted  them,  and 
on  whom  it  has  not  attached  the  same  responsibilities  that 
it  has  on  the  companies,  are  incai)able  of  being  enforced  by 
a  court  of  equity. (f/)' 

(ff)  Johnson  v.  Shrewsbury  and  Birming-  Winch  v.  Birkenhead,  Lancashire  and  Che- 
ham  Railway  Co.,  3  De  G.  M.  &  G.,  914;  Be-  shire  Junction  Railway  Co.,  5  De  G.  &  Sm  , 
manv  Rufford,  1  Sim.  (X.  .S.),  550;  S.  C,  7  562;  London,  Brighton  and  South  Coast  Rail- 
Rail.  C,  4S;  Great  Northern  Railway  Co.  v.  way  Co.  v.  London  and  South  Western  Rail- 
Eastern  counties  Railway  Co.,  9  Ha.,  3u6;  way  Co.,  4  De  G.  &  J.,  363. 

1  Among  those  cases  in  wiiicli  assignments  will  not  be  upheld  either  in  equity 
or  at  law,  as  being  against  the  principles  of  public  polic3^  is  the  assignment  of 
the  commission  of  an  officer  in  the  army  by  way  of  mortgage.  CoUyer  v.  Fal- 
core,  1  Turn.  &  Russ.,  459.  Neither  is  the  full  pay  or  half  pay  of  an  army  or 
navy  officer  assignable,  either  by  the  party  or  by  operation  of  law.  Daves  v. 
Duke  of  Marlborough,  1  Swanst.  R.,  79;  McCarty  v.  Goold,  1  Bali  &  Beat., 
387;  Stone  v.  Littledale,  2  Aust.  R.,  538.  But  the  claims  of  officers  of  the 
revolution  for  compensation  for  services,  as  promised  by  Virginia  unpaid  at  the 
death  of  the  officer,  are  as.sets,  and  assignable  as  other  clioses  in  action.  Mer- 
riwether  v.  Herran,  8  B.  Monr.,  162.  "The  same  doctrine  has  been  applied 
to  the  compensation  granted  to  a  public  officer  for  the  reduction  of  his  emolu- 
ments, or  the  abolition  of  his  office,  who,  by  the  terms  of  his  grant,  might  be 
required  to  return  to  the  public  service.  For  in  such  a  case  the  object  of  the 
government  is  to  command  a  right  to  his  future  services,  and  to  enable  the 
party  to  perform  the  duties,  witii  suitable  means  to  support  him."  Wells  v. 
Foster,  8  M.  &  W.,  149.  In  like  manner  the  profits  of  a  public  office  would 
seem,  upon  a  similar  ground  of  public  policy,  not  to  be  assignable.  Hill  v. 
Paul,  8  Clark  &  Fin.,  2'jr);  Palmer  v.  Bate,  2  Bro.  &  Bing.,  673.  In  reference 
to  pensions  which  are  held  to  be  assignable,  see  Story's  Eq.  Jur.,  §  1040.  The 
salary  of  the  assistant  parliamentary  counsel  for  the  treasury  has  been  held  not 
to  be  assignable.  Cooper  v.  Reilly,  2  Sim.  R.,  560.  But  the  grounds  upon 
which  the  decision  rested  are  the  subjects  of  considerable  doubt,  and  it  is  a 
much  mooted  question  "  whether  a  compensation  or  pension  granted  during 
pleasure,  and  not  for  any  certain  time,  and  revocable  in  its  own  nature,  is  prop- 
erly the  subject  of  an  assignment,  as  being  of  too  uncertain  and  fleeting  a 
character  to  pass  by  assignment — for  although  mere  expectancies  may  pass  by 
assignment,  yet  thej^  must  be  of  a  substantial  character,  and  not  ordinarily  of 
such  a  nature  as  to  rest  in  the  pure  discretion  of  the  party  granting  or  with- 
holding them,  from  time  to  time,  at  his  pleasure."  Story's  Eq.  Jur.,  §  1040  f, 
and  note.  A  distinction  has  also  been  taken  between  the  case  of  an  assignment 
of  the  arrearages  of  full  pay,  or  half  pny,  or  other  compensation  connected 
with  the  right  to  future  success,  and  the  case  of  an  assignment  of  the  future 
accruing  pay,  or  half  pay,  or  other  compensation,  as  the  right  to  arrearages  has 
become  absolute,  and  the  assignment  thereof  may  not  interfere  with  any  public 
policy.  Story's  Eq.  Jur.,  §  1040  f.  And  military  prize  money,  although  rest- 
ing in  the  mere  bounty  of  the  crown,  is  held  to  be  different  in  its  nature  and 
objects  from  military  pay,  and  treated  as  a  right  of  property  rather  than  as 
a  personal  ]3ension  or  reward.     Alexander  v.  Duke  of  Wellington,  2  Russ.  & 


102         FRY  OX  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

§  91  o.  It  must  be  added  that,  eA-en  wliere  a  concluded 
contract  would  be  assignal^le.  tlie  benefit  of  an  offer  cannot, 
it  seems,  be  transferred  by  tlie  person  to  whom  it  is  made 
to  a  third  person.  "In  case  of  an  offer  by  A.  to  sell  to  B., 
an  acceptance  of  the  offer  by  C.  can  establish  no  contract 
with  A.,  there  being  no  privity." (7/) 

§  916.  The  assign  of  a  contract  may,  as  has  been  shown, 
sue  on  it ;(/)  but  he  cannot,  by  notice  to  the  other  party  to 
the  contract,  deprive  him  of  tlie  right  to  complete  it  with  the 
original  contractor,  or  make  him  responsible  for  any  loss 
which  may  result  to  the  assign  from  the  completion  of  the 
contract  with  his  assignor.  (,/) 

§  917.  Questions  may  of  course  arise  as  to  the  extent  of 
the  contract  to  the  benefit  of  which  the  assign  is  entitled. 
Thus,  where  a  lease  was  agreed  to  be  granted  to  A.  of  an 
hotel  near  a  station,  and  it  was  further  agreed  that  A.  should 
have  the  occupation  of  the  refreshment  rooms,  the  question 
arose  whether  the  assign  of  the  lease  granted  to  A.  was  en- 
titled to  sue  for  the  occupation  of  the  refreshment  rooms. 
It  was  held  in  the  affirmative.  (^) 

§918.  Where  a  contract  has  been  entered  into  for  the 
sale  of  property,  and  that  x)roi5erty  is  afterwards  aliened  or 
assigned,  or  contracted  to  be  aliened  or  assigned,  and  the 
alienee  or  assign  has  notice  of  the  original  contract,  he  is 
liable  to  its  performance  at  the  suit  of  the  purchaser.' 
"If,"  said  Lord  St.  Leonards, (Z)  "the  contract  is  a  binding 
one,  it  can  be  enforced  against  any  party  in  whom  is  vested 

(h)  Meynell  v.  Surtees.  3  Sm.  &  Gif.,  101,  affirmed  s.  n.  Shaw  v.  Foster,  L.  R.  5  H.  L., 

117;  Boulton  v.  Jones.  2  II.  &  N.,  564.  321 ;  Crablree  v.  Poole,  id.  12  Eq.,  13. 

(i)  Cf.  Birmingham  Canal  Co. v.Cartwright,  (k)  Flanagan  v.   Great  Western   Railway 

11  Ch.  D.,  421  (covenant  to  give  right  of  pre-  Co.,  L.  R.  7  Eq.,  IIG. 

emption).  {I)  In  Saunders  v.  Cramer,  3  Dr.  &  War., 

U)  McCreight  v.  Foster,  L.  E.  5  Ch.,  604;  99. 

Mylue,  35;  Stephens  v.  Bagwell,  15  Ves.,  139.  It  may  be  laid  clown  as  a  gen- 
eral rule,  that,  where  an  equitable  interest  is  assigned,  in  order  to  give  the 
assignee  a  locus  standi  injudkio  in  a  court  of  equity,  the  party  assigning  such  a 
right  must  have  eitlier  a  substantial  possession,  or  some  capability  of  personal 
enjoj-ment  in  the  thing  assigned.     Prosser  v.  Ildwards,  1  Younge  &  Col.,  481. 

'  Langdon  v.  Woolfolk,  2  B.  Mon.,  105;  Castle  v.  Wilkinson,  L.  li.,  5  Ch., 
530;  Caldwell  v.  Carriuoton,  9  Pet.,  86;  Hoaglaud  v  Latourett,  1  Green  Ch., 
254;  Glover  v.  Fisher,  ll  111.,  6G6;  Wrio'ht  v.  Dame,  23  Pick.,  55;  Clark  v. 
Flint,  23  id.,  331;  Baldwin  v.  Lowe,  33  Iowa,  867;  Snowman  v.  Hareford,  57 
Me.,  397;  W^alker  v.  Cox,  35  Ind.,  357;  Patten  v.  Moore,  33  X.  H..  383,  Ful- 
lerton  v.  McCurdy,  4  Lans.,  132;  Stone  v.  Buckner,  13  Lon.  &  Marsh.,  73; 
Morris  v.  Hovt,  11  Mich.,  9;  see  Davis  v.  Henry,  4  W.  Va.,  571;  Powell  v. 
Young,  45  i\rd.,  414. 


ASSIGNMENT  OF  THE  CONTRACT.  103 

the  legal  and  beneficial  interest  in  the  property/'  "If," 
said  Lord  Rosslyn,(m)  "he  is  purchaser  with  notice,  he  is 
liable  to  the  same  equity,  stands  in  his  place,  and  is  l)ound 
to  do  that  which  the  person  he  represents  Avould  be  bound 
to  do  by  the  decree."  This  principle  has  been  acted  on  in 
numerous  cases,  (t*) 

§  919.  In  particular  the  principle  applies  to  unregistered 
contracts  relating  to  land  in  register  counties.  Such  con- 
tracts may  be  enforced  against  subsequent  purchasers  who 
may  have  obtained  conveyances  which  they  liave  registered, 
if  they  have  notice  of  such  prior  contracts,  (o) 

§  220.  Where  a  person  having  a  prior  title  gets  in  the 
subsequent  estate  which  is  affected  by  the  contract,  and  has 
notice,  he  cannot  protect  himself  from  the  performance  of 
tbe  contract  by  his  elder  title ;  thus,  where  an  equitable 
mortgagor  entered  into  a  contract  for  a  lease,  and  then  the 
mortgagee,  whose  mortgage  was  prior  to  the  contract,  bought 
the  estate  with  notice,  he  was  held  bound  to  specifically  jDer- 
form  the  contract  \{p)  and  again  where  A.,  having  only  the 
equity  of  redemption,  agreed  to  sell  to  B.,  and  subsequently 
both  A.  and  his  mortgagee  conveyed  to  C,  who  had  notice 
of  A.'s  contract  with  B.,  it  was  held  that  B.  might  enforce 
specific  performance  against  C.(g)' 

(»«)  In  Taylor  v.  Stibbert,  2  Ve8.  Jun.,  437.  Sm.  &  G.,  537;  Goodwin  v.  Fielding,  4  De  G. 

(n)  Jackson's  Ci.se,  5  Vin.  Abr.,  543,  pi.  3;  M.  &  G.,  90;  Waldron  v.  Jacob.  I.  R.  5  Eq. 

Howard  v.    Hopkins,  2  Atk  ,  371;  Ford  v.  ISl;  Reilly  v.  Garnett,  id.  7  Eq.,  1,  and  supra, 

Conipton,  2  Bro.  C.  C,  32,  and  Belt's  n..  2;  §  184.    See,  too,  Dyas  v.  Cruise,  2  Jon.  &  L., 

Jalabert  v.  Duke  of  Chandos,  1  Eden,  372;  4G0  (where  a  contract  for  a  leaso  was  enforced 

Brooke  v.   Hewitt,  3  Vcs.,  253;  Knollys  v.  against  a  iirovisional  assignee  in  insolvency); 

Alcock,  5  id.,  648;  Meux  v.  Maltby,  2  Sw.,  and  as  to  the  last  mentioned  case,  cf.  inlVa, 

277;  Spence  V  Hogg  (before  Shadwell.V.  C.,  §225, 

and  Lord  Cottenhara),  1  Coll.,  225;  Dowell  v.  (o)  Ter  James,  L.  J,  in  Greaves  v.  Tofleid, 

Dew,  1  Y.  &  C.  C.  C,  345;  affirmed  12  L.  J.  14  Ch.  D.,  572. 

Ch.,  158;  Crofton  v.  Onnsby,  2  Sch.  &  Lef ,  (;))  .-^mith  v.  Phillips,  1  Ke.,694;  Muniford 

583;  Potter  v.  Sanders,  G  Ha.,  1;  Ilersev  v.  v.  stohwiusser,  L.  K.  18  Eq.,  55(5. 

Giblett,  IS  Beav.,  174;  Shaw  v.  Thackra"y,  1  (</.)  Lightf'oot  v.  Heron,  3  Y.  &  C.  Ex.,  580. 

'  "  It  is  well  settled,"  says  Chancellor  Kent,  in  Champion  v.  Brown,  6  John., 
402,  "that  if  A.  enters  into  a  contract  to  sell  land  to  B.,  and  afterwards  refu.'ses 
to  perform  his  contract,  and  sells  the  laud  to  C.  for  a  valuable  consideration, 
B.  may,  by  bill,  compel  the  purchaser  to  convey  to  him,  jirovided  he  be  charge- 
able in  the  notice,  at  the  time  of  his  purchase  of  B.'s  equitable  title  under  the 
agreement."  And  it  was  there  further  said,  (liat  the  "rule  that  aiTects  the  i)ur- 
chaser  is  just  as  plain  as  that  which  would  entitle  the  vendee  to  a  specific  per- 
formance against  the  vendor.  If  he  be  a  purchaser,  with  notice,  he  is  liable  to 
the  same  equity,  stands  in  his  place,  and  is  bound  to  do  that  which  the  j-yersou 
he  represents  would  be  bound  to  do  by  the  decree.  Tlie  purchaser  from  the 
vendor  takes  the  estate  subject  to  the  charge,  and  so,  I  api^rehend,  docs  a  pur- 
chaser from  the  vendee,  and  he  is  equally  responsible  in  respect  to  the  estate. 
The  vendor  cannot  make  him  personally  liable  for  the  ]mrchase  money,  but  the 
estate  is  liable;  and  if  he  l)e  a  purchaser  with  notice,  it  is  the  same  thing 
whether  the  estate  had  or  had  not  been  actually  conveyed  by  the  vendor."   See 


104        FRY  ON  SPECIFIC  PEKFOKMANCE  OF  COXTRACTS. 

s5  221.  This  principle  of  notice,  nnder  somewhat  j)ecnliar 
circumstances,  was  applied  by  Lord  Eldon  in  the  case  of 
Mortlock  V.  Buller  ;(r)  there  the  plaintiff  alleged  that  a  con- 
tract had  been  entered  into  by  trustees  of  a  marriage-settle- 

(»•)  10  Ves.,  292,  315. 

^Murray  &  Winter  v.  Ballon  &  Hunt.  1  John.  C'h.,  56G;  Hcatley  v.  Finster,  2 
id.,  158.  Assi,!rnecs  take  subject  to  all  prior  equities  between  the  original  par- 
ties. Seott  V.  Slireeve,  12  Wlicat.,  G05;  Bacon  v.  Warner,  1  Root,  84!);  John- 
son V.  Pryor,  5  Heyw.,  243;  Stockton  v.  Cook,  3  Munf.,  68;  Eslep  v.  Walkins, 
1  Bland. ,'486;  MuHikin  v.  Mullikin,  id.,  538;  Gay  v.  Gay,  10  Paige,  369;  Liv- 
ingston V.  Dean,  2  John.  Ch.,  479;  King  v.  Lindsay,  3  Ired.  Ch.,  79;  Porter  v. 
Breckenridge,  Hardin,  21.  Thus,  the  assignee  of  trust  property,  with  notice  of 
the  trust,  takes  it  subject  to  the  trust.  Breedlove  v.  Stump,  3  Yerg..  257. 
And  the  assignee  of  a  judgment  takes  it  subject  to  all  the  equities  existing 
against  it  in  the  hands  of  the  plaintiff  therein.  Jordan  v.  Black,  2  Mur.,  30. 
But  equities,  in  order  to  be  available  against  an  assignee,  must  arise  previously 
to  the  assignment,  or,  at  least,  before  notice  thereof.  Ridgway  v.  Collins,  3 
A.  K.  Mar.sli.,  410.  Therefore,  equities  arising  between  the  maker  and  assignee 
of  a  note,  after  the  assignment,  cannot  be  enforced  against  the  assignee. 
Daviess  v.  Newton,  5  J.  J.  Marsh.,  89.  It  seems,  however,  that  there  is  an. 
exception  to  the  doctrine  of  notice.  "There  is  a  peculiarity  in  the  case  of  a 
dowress,  which  operates  against  her,  and,  upon  this  point  of  notice,  is  proper 
to  be  mentioned.  Though  notice  of  the  title  will  protect  every  other  intei'est  in 
the  inheritance,  it  will  not  protect  her's  "  Storj-'s  Eq.  Jur.,  §  410  (1).  Thei"e- 
fore,  a  purchaser  or  mortgagor  (who  is  a  mortgagor  pro  tanto),  though  he  has 
notice  of  a  right  of  dower  attaching  upon  the  estate  he  is  about  to  purchase, 
may  advance  his  money,  and,  taking  in  a  term,  may  avail  himself  of  it,  and 
thereby  utterly  defeat  the  right  of  dower.  Wynn  v.  Williams,  5  Ves.,  134; 
Mole  V.  Smith,  Jacob's  Rep.,  497;  Maundrell  v.  Maundrell,  10  Ves.,  271 ;  Swan- 
nock  V.  Lifford,  Ambl.  R.,  6;  Radner  v.  Vanderbendy,  Show.  Pari.  Cas.,  69. 
A  purchaser  without  notice  is  not  chargeable;  and,  therefore,  though  a  pur- 
chaser at  a  public  sale  be  chargeable  with  notice,  yet  a  bona  fide  purchaser, 
under  him,  is  not  affected  by  his  notice.  Demarest  v.  Wynkoop,  3  John.,  147; 
Wallwyn  v.  Lee,  9  Ves.,  24  The  rule  is  not,  "however,  absolutely  universal; 
for  it  has  been  broken  in  upon  in  two  classes  of  cases.  In  the  first  place,  it  is 
not  allowed  in  favor  of  a  jiidgment  creditor  who  has  no  notice  of  the  plaintiff's 
equity.  This  appears  to  proceed  upon  the  principle  that  such  judgment  creditor 
shall  be  deemed  entitled  merely  to  the  same  rights  that  tho  debtor  had,  as  he 
comes  in  under  him,  and  not  through  him ;  and  upon  no  new  consideration, 
like  a  purchaser.  Burgh  v.  Burgh,  Rep.  Tem.  Finch,  28."  Story's  Eq.  Jur., 
§  410  (1).  It  has  been  likewise  said  that  a  second  exception  has  been  formed 
in  reference  to  dower,  which  is,  that  the  rule  does  not  apply  in  favor  of  a  bona 
fide  purchaser  without  notice  against  the  claims  of  a  doweress,  as  such.  Wil- 
liams V.  Lambe,  3  Brown's  Ch.,  264.  But  this  has  been  considered  as  an  inno- 
vation without  adequate  foundation;  and  the  propriety  of  the  distinction  has 
been  much  questioned.  See  Gerrard  v.  Saunders,  2  Ves. ,  454.  Where  A.  pur- 
chased an  estate,  with  notice  of  an  incumbrance,  and  then  sold  it  to  B  ,  who 
had  no  notice,  and  B.  afterwards  sold  it  to  C,  who  had  notice,  it  was  held  that 
the  estate  in  the  hands  of  C.  was  discharged  of  the  incumbrance,  notwithstand- 
ing the  notice  of  A.  and  C.  And  this  doctrine  has  ever  since  been  adhered  to, 
as  an  indispensable  muniment  of  title.  But  if  the  estate  becomes  revested  in 
the  original  party,  the  original  equity  will  reattach  to  it  in  his  hands.  Story's 
Eq.  Jur.,  i^  410.  In  England,  it  is  well  settled  that  registration  of  conveyances 
does  not  iimount  to  constructive  notice  to  subsequent  purchasers.  Wyatt  v. 
Barwell,  19  Ves.,  435;  Jolland  v.  Stambridge,  3  id.,  477.  But  in  America  it  is 
uniformly  held,  that  such  registration  operates  as  constructive  notice  to  all 
buyers  of  any  estate,  legal  or  equitable,  in  the  same  property.  Parkhurst  v. 
Alexander,  1  John.  Ch.,  394. 


ASSIGNMENT  OF  THE  CONTRACT.  1()5 

ment,  who  had  a  power  to  sell  with  the  consent  of  the 
husband  and  vrife ;  after  the  bill  was  filed,  the  wife  died, 
and  the  husband's  estate  for  life  and  remainder  in  fee  were 
brought  together,  and  the  legal  power  of  sale  in  the  trustees 
was  extinguished.  But  Lord  Eldon  caid  that  if  the  pur- 
chaser had  entered  into  the  contract  with  the  approbation 
of  the  husband  and  wife,  as  was  required  l)y  the  settlement, 
the  contract  bound  the  estate,  and  should  be  made  good 
by  those  who  took  interests,  if  it  could  not  out  of  the 
power. 

§  2'32.  This  principle  is  not  coniined  to  executory  con- 
tracts, but  apj)lies  also  to  the  specific  relief  given  in  respect 
of  covenants  and  other  executed  contracts,  for  these  may  in 
all  cases  be  enforced  against  any  person  into  whose  hands 
the  property  in  question  may  come  with  notice. 

§  2^3.  Contracts  to  devise  lands  have  been  enforced 
against  persons  claiming  them  under  the  party  contracting 
to  make  the  will.  (.9)' 

§  924.  One  particular  species  of  assignment  of  a  contract 
arises  in  the  cases  in  which  a  railway  or  other  public  com- 
pany has  entered  into  a  contract,  and  subsequent!}'  becomes 
amalgamated  with  some  other  company  ;  for  by  this  process 
the  liability  under  the  contracts  of  the  existing  companies 

(s)  Goylmer  v.  PacUliston,  2  Ventr.,  353;  531;  Xeedhani  v.  Smith,  4  Russ.,318;  Logan 

S.  C.  as  Goilmere  v.  Battison,  1  Vern.,  48.  v.  Wienholt,  1  CI.  &  Fin  ,611;  Jonesv.  IIow, 

AndseefurthcT,  as  to  contracts  to  make  wills  7  Ha.,  267;  S.  C,  9  C.  B.,  1;  Barkworth  v. 

containing  particular  dispositions,  Lord  Wal-  Youngr,  4  Drew  ,  1;  Eyre  v    Monro,  26  L.  J. 

pole  V.  Lord  Orford,  3  Ves.,  4()-2;  Jones  v.  Ch.,7o7;  5W.  R.,S70;  Aldersan  v.  Maddison, 

Martin,  5  id.,  2G6,  n. ;  Fortescue  v.  Hennah,  5  Ex.  D.,  293. 
19  Id.,  67;  Needham  v.  Kirkman,  3  B.  &  Al., 

'  Agreement  to  devise  properii/  hy  icill.'\  A  court  of  equity -will  enforce  an 
agreemeut  binding  a  person  to  dispose  of  his  property  by  will;  anil  the  heir  at 
law  will  be  compelled  to  convey  the  property  according  to  the  terms  of  the 
agreement.  Such  contract  is  regarded  with  suspicion,  and  will  not  be  sustained 
except  upon  the  strongest  evidence  that  it  was  founded  upon  a  valuable  consid- 
eration, and  was  the" deliberate  act  of  the  decedent.  Logau  v.  Weirholt,  7 
Bligh  (N.  S.),  1;  Rives  v.  Rives,  3  Dessau. 's  £([.,  I<.t5;  Izard  v.  Izard.  8  id., 
116,  note;  3IcClure  v.  McClure,  1  Pa.  Stat.,  378:  Brinker  v.  Drinker.  1  id.,  53; 
Logau  v.  jNIcGinnis,  12  id.,  82;  Mundseph  v.  Kilbourn,  4  Md.,  4.5U;  Wright  v. 
Tinsley.  30  3Io.,  389;  Gupton  v.  Gupton.  47  id.,  37;  Sutton  v.  Havdon.  02  id., 
101;  Johnson  v.  Hubbell,  10  N.  J.  Eq.  (2  Stock,),  332:  Fin.sly  v.  Parkhurst,  29 
Md.,  58;  Harder  v.  Harder.  2  Sandf.  Ch..  17;  Carsligle  v.  Flemmings,  1  Har- 
ring.,  421.  In  Stafford  v.  Bartholomew,  2  Carter,  153,  a  contrary  rule  is  held. 
See  as  to  the  power  to  devise,  Shakespeare  v.  Markham,  10  Hun.  311;  Ugilvie 
V.  Ogilvie,  1  Bradf.,  356;  Bowen  v.  Boweu,  2  Bradf  ,  336:  Williams  v.  Hutch- 
inson, 3  N.  Y.,  312;  Robinson  v.  Raynor,  28  id.,  494;  Par.'^ell  v.  Stryker,  41 
id.,  480;  Lisk  v.  Shannon,  25  Barb.,  433;  Cox  v.  Cox,  26  Gratt.,  305;  Sprinkle 
V.  Hay  worth,  26  id.,  384. 


106        FRY  OX  SPECIFIC  PEKFOKMAXCE  OF  CONTRACTS. 

is  transferred  to  the  new  body  which  arises  out  of  their 
fusion.  (^) 

§  tJ-lS.  It  may  here  be  noticed  that  if  a  contracting  party 
become  a  bankrupt  or  a  liquidating  debtor,  specific  perform- 
ance cannot  be  enforced  against  the  trustee  without  his 
consent,  (w) 

(f)  Stanlevv.  Chester  and  Birkenhead  Rail-  N..  5S8     Cf.  Ernest  v.  Nlcholls.  C  H    L   C., 

way  CO  "fl  Sim  ,264;  S.  C. :?  My.  &  Cr..  773;  401.  and  as  to  mi  way  companies  see  26  and 

Earl  of  Liudsey  V.  Great  Northern  Railway  2-  Met.,  ch.  92,  §  4o  ,,^  ^    ««  apssel 

Co  .  10  Ila. .  (-.64  (where  the  cases  of  amalsa-       (v)  Holloway  y.  1  ork,  25  W.  R. ,  62<(JeB8ei, 

matlon  establishing  this  principle  are  dis-  M   R.).    Cf.  Whitworth  v.  Davis,  1  V.  &  B  , 

bussed)  ^  Chiv  rRufford.  1  Sim.  (X   S.),  550;  545;  Orlebar  v.  Fletcher.  1  P.  Wms.  (6  h  ed.), 

BalfourS-^K-s?  5  a  B.'  (N.  s!),  601;  Sol-  738;  Kell  v- Nokes,  14  XV  R.,  908;  and  Dyas 

vency  Mutual  Guarantee  Co.  v.  York,  3  H.  &  v.  Cruise,  2  Jon.  &  L.,  460. 


LIABILITIES  OF  COMPANIES  FOIl  CONTRACTS.  107 


CHAPTER  V. 

OF   THE   LIABILITY   OF   COMPANIES   FOR   THE    CONTRACTS   OF 
THEIR   PROMOTERS. 

§  226.  Another  very  important  exception  to  the  general 
rule,  as  to  parties  to  the  contract  alone  being  parties  to  the 
action,  is  furnished  by  the  doctrine  introduced  and  acted 
on  by  Lord  Cottenham,  that  a  public  company  after  incor- 
j)oration  may  be  sued  for  the  specilic  performance  of  con- 
tracts entered  into  before  the  passing  of  its  act  by  the 
promoters— on  the  ground  that  the  company  stands  in  the 
place  of  the  promoters,  or,  to  use  the  language  of  Lord 
Jeffrey  in  the  court  of  session,  that  the  fact  of  "a  party 
having  passed  from  the  chrysalis  to  the  butteiHy  state,"  (a) 
creates  no  difficulty  in  the  enforcement  of  such  a  contract. 

§  227.  The  principle  was  first  introduced  in  the  case  of 
Edwards  v.  The  Grand  Junction  Railway  Co. ;  (b)  there  Moss, 
who  was  the  agent  of  the  promoters  of  a  railway,  entered 
into  a  contract  with  the  trustees  of  a  public  highway,  whilst 
the  railway  bill  was  before  Parliament  by  which  Moss 
agreed  that  he  would  enter  into  a  contract  to  the  effect  of 
certain  clauses  which  the  trustees  had  been  desirous  to  have 
inserted  into  the  bill,  and  would  get  the  same  conlirmed 
under  the  seal  of  the  company  intended  to  be  incorporated, 
the  contract  being  expressed  to  be  made  on  the  understand- 
ing that  the  trustees  should  otter  no  opposition  to  the  bill, 
and  tiiat  the  contract  should  be  void  on  Moss  delivering  to 
the  trustees  the  engagement  of  the  intended  company  to  the 
same  effect.  The  bill  passed:  the  company  i)roi)osed  to 
make  a  road  across  the  railway  of  a  narrower  width  than 
that  stipulated  for  by  the  clauses  beforementioned  :  on  a 
bill  tiled  by  the  trustees  against  the  company  for  a  pei-form- 
ance  of  the  contract  and  an  injunction,  the  company  was 

(a)  CiUedonian  ami  Dumbartonehhe  June-       (b)  1  IMy.  &  Cr.,  G5(.i;  >.  C  ,  1  llall.  C.,  173; 
tion  Railway  Co.  v.  The  Magistrates  o!  Hel-    before  Shadwell,  v.  C,  .  Sim.,  33(. 
cnsburgh,  iM'Q.,  394. 


108        FKY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

held  to  be  bound  by  the  contract  entered  into  by  the  pro- 
moters before  incorporation.  "The  question/'  said  Lord 
Cottenliain,  in  delivering  jiidgment,(c)  "is  not  whether  there 
be  any  binding  contract  at  law,  but  whether  this  court  will 
permit  the  company  to  use  their  powers  under  the  act  in 
direct  opposition  to  the  arrangement  made  with  the  trus- 
tees prior  to  the  act,  upon  the  faith  of  which  they  were  per- 
mitted to  obtain  such  powers.  If  the  company  and  the 
projectors  cannot  be  identified,  still  it  is  clear  that  the  com- 
pany have  succeeded  to,  and  are  now  in  possession  of,  all 
that  the  projectors  had  before,  they  are  entitled  to  all  their 
rights,  and  subject  to  all  their  liabilities.  If  any  one  had 
individually  projected  such  a  scheme,  and,  in  prosecution 
of  it,  had  entered  into  arrangements,  and  then  had  sold  and 
assigned  all  his  interest  in  it  to  another,  there  would  be  no 
legal  obligation  between  those  who  had  dealt  with  the  origi- 
nal projector  and  such  purchaser ;  but  in  this  court  it  would 
l)e  otherwise.  So  here,  as  the  company  stand  in  the  place 
of  the  projectors,  they  cannot  repudiate  arrangements  into 
which  such  projectors  had  entered ;  they  cannot  exercise 
the  powers  given  by  Parliament  to  such  projectors  in  their 
corporate  capacity,  and  at  the  same  time  refuse  to  comply 
with  those  terms  upon  the  faith  of  which  all  opposition  to 
their  obtaining  such  powers  was  withheld."  The  same 
principle  was  subsequently  acted  on  by  his  lordship  in  the 
cases  of  Stanley  v.  The  Chester  and  Birkenhead  Railway 
Co.(<fZ)  and  Lord  Petre  v.  The  Eastern  Counties  Railway 
Co.(e) 

§  ^•28.  The  conditions  under  which  the  doctrine  in  ques- 
tion is  applicable,  if  they  have  not  been  narrowed  by  sub- 
sequent cases,  have  at  least  been  more  clearly  defined  than 
they  w-ere  in  the  cases  already  referred  to.  These  condi- 
tions seem  to  be  (1)  that  the  company  must  have  taken  the 
benefit  of  the  contract,  and  (2)  that  the  contract  must  be 
for  something  warranted  by  the  terms  of  the  incorx)oration. 

§  229.  (1)  The  comi^any  itself,  after  incorporation,  must 
either  have  taken  the  benefit  of  the  contract,  or  have  other- 

(c)  1  My.  &  Cr.,  672.  Birmingham  Railway  Co.,  3  My.  &  Cr.,  791, 
(rf»  .3  My.  &  Or.,  773;  S.  C,  1  Rail.  C,  58;  and  In  Doo  v.  The  London  and  Croydon  Rail- 
before  Shadwell.V.  C.,  9  .Sim.,  264.  way  Co.,  1  Rail.  C,  257;  and  see  Vauxhall 

(e)  1  Rail.  C  ,  462.    See,  also,  per  Lord  Cot-  Bridge  Co.  v.  Earl  Spencer,  Jac,  64. 
tenham  In  Greenbalgh  v.  Manchester  and 


LIABILITIES  OF  COMPANIES  FOR  CONTRACTS.  109 

wise  recognized  it  as  a  contract  l)inding  on  tliem.  It  is  not 
enough  that  the  opi^osition  to  the  intended  bill  was  with- 
drawn, as  that  is  a  consideration  moving,  not  to  the  com- 
pany, but  to  the  promoters.  Therefore,  where  a  company 
was  incorporated  in  consequence  of  the  withdrawal  of  the 
plaintiff's  oiDposition,  but  after  that  event  they  had  not  en- 
tered upon  any  of  the  land,  or  in  anywise  adopted  the  con- 
tract, except  by  fruitless  negotiations,  Lord  Romilly,  M.  R., 
refused  siDecilic  performance  of  the  contract,  and  declined 
to  order  the  defendants  to  admit  the  validity  of  the  contract 
in  an  action  at  laAv  ;(/')  and  his  lordship  acted  on  the  same 
principle  in  the  case,  which  shortly  afterwards  came  before 
him,  of  Preston  v.  The  Liverpool,  Manchester  and  Newcas- 
tle Railway  Co.(^)  In  The  Earl  of  Lindsey  v.  The  Great 
Northern  Railway  Co., (7^)  Lord  Hatlierley  (then  V.  C.)  ex 
plained  the  principle  of  these  cases  in  a  way  strongly  sup- 
porting the  first  condition  above  stated.  He  considered 
that  the  cases  did  not  proceed  on  the  i^rinciple  of  contract 
through  the  agencj^  of  the  promoters,  but  on  the  x^i'inciple 
that  the  court  will  not  allow  a  body  to  exercise  powers  ac- 
quired by  means  of  a  previous  contract  and  arrangement, 
without  carrying  that  contract  and  arrangement  into  full 
effect.  To  this  extent  the  court  acts  negatively  ;  but  having 
once  acquired  jurisdiction,  then  its  action  is  positive  as 
well  as  negative,  and  therefore  it  will  not  merely  restrain 
the  doing  of  acts  contrary  to  the  contract,  but  will  enforce 
every  portion  of  it.  Lord  Campbell  also,  in  his  judgment 
in  The  Eastern  Counties  Railway  Co.  v.  Hawkes,(/)  sup- 
ported the  same  view  of  Cottenham's  doctrine.  But  it  must- 
be  added  that  Lord  St.  Leonards,  from  the  observations  he 
made  in  the  last-mentioned  case  on  Gooday  v.  The  Colches- 
ter Railway  Co., (J)  appeared  inclined  to  uphold  that  doc- 
trine in  its  utmost  generality,  and  to  hold  that  the  conduct 
of  the  directors,  after  the  act,  in  relation  to  the  execution 
of  their  powers,  cannot  absolve  them  from  liability  in  re- 
spect of  the  benefit  which  they  secured  by  the  withdrawal 
of  the  opposition  to  the  bill. 

(/)  Gooday  v.  Colchester,   etc.,  Railway  ((/)  17  Beav.,  115. 

Co  ,  17  Beav.,  132;  Williams  v.  St.  George's  (h)  lOUa.,664. 

Harbor  Co.,  3  Jur.  (N.  S.).  lOU  (Lord  Rom-  (i)  5  H.  L   C,  356. 

illy,  M.  R.);  2  De  G.  &  J.,  547.  U)  Id.,  SOS. 


110        FRY  OX  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

g  '-J:I0.  In  Williams  v.  The  St.  George's  Harbor  Co.,(A-) 
the  company  after  incorporation  had,  by  an  agreement, 
been  made  parties  to  an  action  by  the  plaintiff  against  the 
promoters  on  a  contract  entered  into  by  the  promoters  be- 
fore incorporation,  and  had  consented  to  a  judgment  in  that 
action.  That  judgment,  by  consent,  was  held  to  be  a  suffi- 
cient recognition  of  the  contract  of  tlie  promoters  as  a  con- 
tract binding  on  the  company  to  give  the  court  of  chancery 
jurisdiction. 

§231.  Where  the  contract  is  within  the  powers  of  the 
future  company,  and  is  beneficial  for  the  company,  and  the 
company  sues  upon  it,  the  other  contracting  party  cannot, 
on  the  ground  of  want  of  mutuality,  raise  any  objection  to 
the  company's  enforcing  the  contract. (Z) 

§  232.  (2)  The  second  condition,  viz. :  that  the  contract 
must  be  for  something  warranted  by  the  terms  of  the  incor- 
poration, and  which  the  company  is,  therefore,  competent 
to  perform  under  the  powers  of  its  act,  is  established  and 
illustrated  by  the  case  of  The  Caledonian  and  Dumbarton- 
shire Junction  Railway  Co.  v.  The  Magistrates  of  Helens- 
burgh, (?m)  which  came  before  the  House  of  Lords  from  the 
court  of  session  in  Scotland.  The  magistrate  of  Helensburgh 
had  agreed  with  the  promoters  of  the  railway  to  afford  the 
projected  company  certain  facilities  for  the  construction  of 
the  railway  through  the  town,  and  to  petition  Parliament  in 
favor  of  the  bill;  and  the  promoters  on  their  part  agreed 
that  the  company  should  pay  for  the  making  of  a  quay  and 
harbor,  which  the  magistrates  were  to  apply  to  Parliament 
for  powers  to  make.  Lord  Cranworth,  after  animadverting 
on  the  general  principle  introduced  by  Lord  Cottenham, 
decided  the  case  on  the  ground  that,  in  the  instances  before 
that  judge,  the  acts  to  be  done  were  within  the  powers  of 
the  company  when  incorporated,  whereas  here  the  object  of 
the  arrangement  was  to  apply  the  funds  raised  under  legis- 
lative authority  for  the  purpose  of  the  railway  to  an  object 
foreign  from  that  of  the  railway,  namely,  the  construction 
of  a  pier  and  harbor. 

§  233.  Again,  in  Preston  v.  The  Liverpool,  Manchester 

(Jc)  2  De  G   &  J.,  547.  (m)  3  M'Q.,  391. 

(?i  Bedford  and  Cambridge  Railway  Co.  v. 
Stanley,  2  J.  &  H.,  746. 


LIABILITIES  OF  COMPANIES  FOR  CONTRACTS.  Ill 

and  Newcastle-npon-Tyne  Junction  Railway  Co.,('0  Lord 
Cran worth  lield  that  a  contract  to  imy  £5,000  to  a  person 
for  not  oiDposing  a  bill  in  Parliament  would  be  uUra  vires 
of  a  railway  company  when  incorporated,  and,  therefore, 
that  it  could  not  be  enforced  against  the  company  by  reason 
of  its  having  been  entered  into  by  the  promoters.  A  very 
similar  decision  was  pronounced  by  Kindersley,  Y.  C,  in 
The  Earl  of  Shrewsbury  v.  The  North  Staffordshire  Railway 
Co.(o)  There  the  i^romoters  had  agreed  to  pay  to  the  plain- 
tiff £2,000  for  his  supi^ort  in  obtaing  their  act,  and  the 
directors  of  the  company  after  incorporation  had  ratified 
the  bargain.  It  was  held  to  be  ultra  vires  of  the  company 
and  not  binding,  though  entered  into  by  the  promoters  be- 
fore the  passing  of  the  act. 

§  334.  Not  only  have  these  conditions  been  imposed  on 
the  doctrine  as  laid  dow^n  b}^  Lord  Cottenham,  but  grave 
doubts  have  been  thrown  on  the  very  principles  of  his  de- 
cisions by  Lords  Cranworth  and  Brougham,  and  by  Kinder- 
sley, y.  C.  Thus,  in  the  case  already  referred  to  of  The 
Caledonian  and  Dumbartonshire  Junction  Railway  Co.  v. 
The  Magistrates  of  Helensburgh,  (^j))  Lord  Cranworth,  in  a 
written  judgment  which  had  before  its  delivery  received  the 
concurrence  of  Lord  Brougham,  though  deciding  the  case 
upon  the  point  before  mentioned,  fully  considered  the 
general  principle  in  question,  and  disapx)roved  of  it.  His 
lordship  observed  that  the  doctrine  in  question  could  be 
supported  only  on  the  assumption  that  the  company  when 
incorporated  is  in  substance,  though  not  in  form,  a  body 
succeeding  to  the  rights  and  coming  into  the  place  of  the 
projectors ;  and  then  proceeded  to  show  that,  in  his  judg- 
ment, it  is  such  a  body  neither  in  form  nor  in  substance. 
The  body  incorj)orated,  he  argued,  is  not  confined  to  the 
projectors,  and  may  even  include  none  of  them  ;  the  act  of 
parliament  when  passed  becomes  the  charter  of  the  com- 
pany, prescribing  its  duties  and  declaring  its  rights  ;  and 
all  persons  becoming  shareholders  have  a  right  to  consider 
that  they  are  entitled  to  all  the  benefits  held  out  by  the  act, 
and  liable  to  no  obligation  beyond  those  which  are  there 

(w)  5  H.  L.  C,  605,  621.    See,  aleo,  Leomln-  (p)2M'Q,  391.    See,  also,  Williams  v.  St. 

ster  Canal  Co.  v.  Shrewsbury  and  Hereford  George's  Uarbor  Co.,  3  Jur.  (N.  S.),  lUl4(Lord 

Railway  Co  ,  3  K.  &  J.,  651.  Romilly,  M.  R.;;  2  De  G.  &  J.,  547. 

(0)  L.  R.  1  Eq.,  593. 


112        FRY  OX  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

indicated ;  that  to  permit  other  terms  to  be  imposed  on  the 
sliareholders  behind  the  terms  of  incorporation,  would  lead 
to  injury  to  the  shareholders,  and  often  to  a  fraud,  or  at 
least  a  surprise  on  the  legislature;  and  that,  to  render 
special  terms  as  to  particular  cases  or  persons  binding  on 
the  company,  they  ought  to  be  the  subject  of  special  clauses 
in  the  act,  whereby  the  whole  truth  could  be  disclosed,  and 
neither  the  legislature  nor  any  person  taking  shares  could 
complain.  Again,  in  the  case  of  Preston  v.  The  Liverpool, 
Manchester  and  Newcastle-upon-Tyne  Junction  Railway 
Co., ((7)  Lords  Cran worth  and  Brougham  expressed  similar 
views  of  the  doctrine,  although  the  ground  on  which  they 
dismissed  the  plaintiff's  appeal  was  that  the  contract  was  in 
itself  conditional  on  the  construction  of  the  railway.  And 
Kindersley,  Y.  C,  in  a  case  already  referred  to(r)  expressed 
himself  adversely  to  Lord  Cottenham's  view. 

§  ^li5.  In  this  state  of  the  authorities,  it  is  difficult  to 
speak  with  certainty  as  to  how  far  the  doctrine  in  question 
is  to  be  considered  as  law ;  on  the  one  hand,  it  has  been 
repeatedly  acted  on  by  Lord  Cottenham,  and  appears  to 
have  been  adopted  by  Lords  Camj)bell  and  St.  Leonards ; 
on  the  other  hand,  the  i:»rinciples  upon  which  it  rests  have 
been  criticised  by  Lord  Hatherley  (when  V.  C),  and  ha^^e 
been  distinctly  disapproved  of  by  Lords  Brougham  and 
Cranworth  and  Kindersley,  V.  C,  upon  reasonings,  to  say 
the  least,  of  the  greatest  weight  and  cogency.  In  the  judg- 
ment of  Kindersley,  V.  C,  in  the  case  last  referred  to(r)  will 
be  found  a  very  careful  statement  of  the  reasoning  for  and 
against  this  doctrine  of  Lord  Cottenham.  It  is  difficult  to 
refuse  assent  to  the  learned  judge's  conclusion  that  "it 
would  be  most  consonant  with  legal  i^rinciple,  most  just, 
and  most  for  the  public  benefit,  to  hold  that  contracts  of 
the  iDromoters  with  landowners  are  not  binding  on  the  com- 
pany, unless  sanctioned  by  the  act  constituting  the  com- 
pany. "(5) 

(q)  5  H.  L.,  605,  affirming  the  decision  of       (r)  Earl  of  Slirewsbury  v.  Korth  Staflford- 
Lord  Romilly,  M.  R.,  17  Beav.,  115.    See  the    shire  Railway  Co.,  L.  R.  1  Eq.,  593. 
same  case  before  Lord  Cranworth  as  V.  C.,  1        («)  L.  R.  1  Eq.,  615-6. 
Sim.  (N.  s.),  586,  as  to  which  see  the  case  be- 
fore the  House  of  Lords. 


AGENCY.  113 


CHAPTER  VI. 

OF   AGENCY. 

§  336.  The  cases  wMcli  arise  wliere  the  contract  is  made 
by  an  agent  require  consideration,  as  sometimes  affording 
an  apparent  exception  to  the  rule  that  parties  to  the  contract 
only  can  be  parties  to  the  action. 

§  337.  Where  agents  contract  ostensibly  as  such,  and  in 
the  names  of  their  principals,  little  difficulty  can  occur. 
The  principals  here  are  the  pro]3er  parties  to  sue  and  be 
sued,  and  it  is,  in  the  absence  of  special  circumstances,  im- 
proper to  make  such  an  agent  a  party  to  the  action,  (a)  In 
one  case,  where  an  agent  having  no  interest  whatever  was 
made  a  co-plaintiff,  the  bill  was  held  to  be  demurrable.  (5) 

§  938.  Where,  on  the  other  hand,  agents  appear  on  the 
face  of  the  contract  as  principals,  the  case  is  different.  The 
principle  by  which  these  cases  are  regulated,  is  laid  down 
with  great  clearness  by  Lord  Wensleydale  in  Higgins  v. 
Senior. (c)  "There  is  no  doubt,"  said  his  lordship,  "that 
where  such  an  agreement  is  made,  it  is  competent  to  show 
that  one  or  both  of  the  contracting  parties  were  agents  for 
other  persons,  and  acted  as  such  agents  in  making  the  con- 
tract, so  as  to  give  the  benefit  of  the  contract  on  the  one 
hand  to,{d)  and  charge  with  liability  on  the  other, (e)  the 
unnamed  principals— and  this,  whether  the  agreement  be  or 
be  not  required  to  be  in  writing  by  the  Statute  of  Frauds  ; 
and  this  evidence  in  no  way  contradicts  the  written  agree- 
ment. It  does  not  deny  that  it  is  binding  on  those  whom, 
on  the  face  of  it,  it  purports  to  bind  ;  but  shows  that  it  also 
binds  another,  by  reason  that  the  act  of  the  agent,  in  sign- 
ing the  agreement  in  pursuance  of  his  authority,  is,  in  law, 

(a)  John8onv.Ogilby,3P.Wms.,277;  Smith  R.,  51  (agent  sole  plaintiff);  and  see,  as  to 

V.  Clarke.  12  Ves.,  477,  484;  Lisset  v.  Reave,  misjoinder,  15  and  IG  Vic,  ch.  S6,  §  49,  and 

2  Atk.,  394;  Ex  parte  Hartop,  12  Ves.,  349,  Ord.  XVI,  r.  13.  ^   .   ^    -^ 

352;  Clark  v.  Lord  Rivers,  L.  R.  5  Eq.,  91.       (c)  8  M.  &  W.,  S44.    Cf.  per  Knight  Bruce, 

As  to  the  second  ground  of  demurrer  in  the  V.  C,  in  Xelthorpe  v.  Holgate,  1  Coll.,  220. 
last  mentioned  case,  see  now  Ord.  XVI,  r.  3.        (d)  See  Garrett  v.  llandley,  4  B.  &  C,  684; 

(6)  King  of  Spain  v.  De  Machado,  4  Russ.,  Bateman  v.  Phillips,  la  East,  2,2. 
225,  241;  cf.  Glashrook  v.  Richardson,  23  W.       (e)  See  Paterson  v.  Gandasequi,15East,62. 

8 


114        FUY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

the  act  of  the  principal.  But,  on  the  other  hand,  to  allow 
evidence  to  be  given  tliat  the  party  who  appears  on  the  face 
of  the  instrument  to  be  personally  a  contracting  party,  is 
not  such,  would  be  to  allow  parol  evidence  to  contradict  the 
written  agreement,  which  cannot  be  done."  The  Statute  of 
Frauds,  as  we  shall  subsequently  see,(/)  does  not  require 
that  the  authority  of  the  agent  should  be  in  writing  where 
the  contract  is  required  to  be  so. ' 

(/)  Part  III,  ch.U,  §508, 

•  In  reference  to  the  case  of  Higgins  v.  Senior,  and  the  rule  which  it  goes  to 
establish,  it  was  said  by  Mason,  J.,  in  Fenly  v.  Stewart,  5  Sandf.  Sup.  Ct.,  105, 
after  quoting  the  decision  of  Mr.  Baron  Parke,  as  given  in  the  text,  "Now  it 
requires  very  nice  powers  of  discrimination,  we  think,  to  perceive  how  the  in- 
troduction of  a  new  party  into  the  contract  is  not  a  contradiction  of  the  written 
instrument,  as  well  as  the  striking  out  of  a  party  already  in.  According  to  this- 
mode  of  interpreting  the  statute,  Otis  &  Co.  are  liable  on  the  contract  before 
us,  because  they  subscribed  it  as  parties  and  as  principals;  they  cannot,  there- 
fore, be  discharged  by  parol.  To  discharge  them  Avould  be  to  contradict  the 
written  instrument  and  violate  the  statute;  but  it  is  no  contradiction  of  the 
written  instrument,  and  no  violation  of  the  statute,  to  admit  parol  proof  to 
show  that  the  defendants,  although  not  named  in  the  contract,  are,  neverthe- 
less, parties  to  it,  and  are  to  be  charged  with  its  performance.  They  are  to  be 
charged  as  principals,  not  on  their  own  signature,  but  on  parol  proof  of  the 
relation  in  which  they  stood  to  Otis  &  Co.,  who  themselves  subscribed  the  con- 
tract as  principals.  "It  is  to  be  observed  that  the  remarks  of  Baron  Parke, 
which  we  have  quoted,  were  not  necessary  to  the  decision  of  the  question 
then  before  the  court.  The  question  was  not  whether  the  unknown  principals 
should  be  charged,  but  whether  the  defendents,  who  signed  the  contract  in 
their  own  names,  could  lie  discharged  bj-  parol  proof  that  they  were  agents 
merely.  His  remarks,  therefore,  although  entitled  to  the  highest  respect,  as 
coming  from  a  profound  and  learned  jurist,  yet  have  not  the  weight  of  an 
authority,  and  would  not  be  regarded  as  such  in  his  own  court.  The  doctrine 
which  he  has  thus  advanced,  however,  is  adopted  by  Mr.  Justice  Story,  in  "his 
work  on  agency.  He  says  that  'written  contract,  made  by  a  factor  in  his  own. 
name,  for  the  purchase  or  sale  of  goods  for  his  principal,  will  bind  the  princi- 
pal, and  he  may  be  sued  thereon  exactly  as  if  he  were  named  in  it,  for  it  is 
treated  as  the  contract  of  the  principal  as  well  as  the  agent.'  (Story  on  Agency, 
§  161.)  '  We  were  not  on  the  argument  referred  to,  and  on  investigations  have 
not  discovered  any  case,  decided  in  England,  supporting  the  position  thus  laid 
down  by  Baron  Park  and  Judge  Story.  The  cases  which  come  nearest  to  it 
are  Wilson  v.  Hart  (7  Taunt.,  295),  decided  in  1817,  and  Truman  v.  Loder  (11 
Ad.  &  Ellis,  589),  decided  in  1840;  but  upon  examination  it  will  be  found  that 
they  do  not  bear  out  the  doctrine.  In  Wilson  v.  Hart,  although  the  defendant 
was  made  liable  for  goods  where  the  bought  note  was  signed  by  one  Keed,  in 
his  own  name,  as  principal,  yet  it  w^as  distinctly  put  to  the  jury  to  say  whether 
it  was  a  sale  to  Reed  or  to  the  defendant,  who  had  obtained  possession  of  the 
goods;  and  whether  the  mode  of  the  purchase  was  not  a  fraudulent  device 
between  Reed  and  the  defendant,  to  enable  the  latter,  by  means  of  it,  to  get 
possession  of  the  plaintiff's  goods,  in  order  to  apply  them  to  the  payment  of  a 
debt  which  was  due  from  Reed  to  the  defendant.  Baron  Parke,  in  Higgins  v. 
Senior,  admits  that  the  case  turned  altogether  on  the  fraud,  and  says  that  if  it 
had  not,  it  would  have  been  an  authority  for  the  admission  of  parol  evidence 
to  charge  the  defendant,  and  not  to  discharge  Reed.  In  Truman  v.  Loder, 
the  defendant  was  made  liable  on  an  executory  contract,  in  which  one  Higgin- 
botham  appeared  as  principal,  and  the  defendant's  name  was  not  mentioned; 
but  the  decision  was  placed  expressly  on  the  ground  that  the  defendant,  who^ 
resided  abroad,  traded  in  England  under  the  name  of  Higginbotham;  and  that 


AGENCY.  115 

§  239.  The  proposition  at  which  we  have  thus  arrived, 
that  a  person  appearing  as  principal  may  yet  have  con- 
tracted as  agent  for  another,  who  may,  when  disclosed,  sue 
or  be  sued  as  principal,  is  to  be  qualified  by  all  those  con- 

all  business  done  by  Higginbotham  was  his,  the  defendant's  business,  and  done 
with  his  capital  and  credit.  Besides  these  two  cases  we  have  found  no  express 
decisions  in  England  apparently  sustaining  the  doctrine  of  Baron  Parke,  in  Hig- 
gins  V.  Senior,  that  upon  a  contract  which  the  statute  requires  to  be  in  writing, 
signed  by  the  parties  to  be  charged,  a  third  party,  whose  name  does  not  appear 
in  the  writing,  may  be  charged  by  parol  evidence,  that  the  party  signing  in  his 
own  name  acted  as  an  agent  for  such  third  party.  There  are  numerous  cases 
in  the  English  books,  where  a  party  has  been  charged  on  a  contract  signed  by 
a  broker  or  other  person  in  his  own  name,  without  adding  to  his  signature  the 
word  agent,  or  expressing  in  the  mode  of  signing  that  he  was  acting  for  such 
party;  but  in  all  such  cases  the  name  of  the  party  charged  is  in  the  body  of 
the  memorandum,  and  it  appears  from  its  whole  tenor  that  the  party  signing 
acts  simply  as  a  broker  or  agent.'  "  The  learned  judge  then  continues  to  say 
that  he  considered  the  question  had  been  settled  in  the  cases  of  Stackpole  v. 
Arnold  (11  Mass.,  27),  Pentry  v.  Stanton  (10  Wend.,  271)andXewcomb  v.  Clarke 
(1  Denio,  226).  And  after  a  brief 'review  of  these  cases  he  states  the  rule  to  be, 
that  "where  a  contract  is  reduced  to  writing,  whether  in  compliance  with  the 
requisitions  of  the  statute  of  frauds  or  not,  and  it  is  necessary  to  sue  upon  the 
writing  itself,  there  you  cannot  go  out  of  the  writing,  or  contradict  or  alter  it  by 
parol  proof,  and  consequently  cannot  recover  against  a  party  not  named  in 
the  writing;  but  where  the  contract  of  sale  has  been  executed,  so  that  an  action 
may  be  maintained  for  the  price  of  the  goods,  iiTespective  of  the  writing,  there 
the  party  who  has  had  the  benefit  of  the  sale  may  be  held  liable,  unless  the  ven- 
dor, knowing  who  the  principal  is,  has  elected  to  consider  the  agent  his  debtor." 
See,  also.  United  States  v.  Parmelee,  1  Paines's  C.  C,  252;  Minard  v.  Mead,  7 
Wend.,  68,  is  an  authority  in  support  of  this  nile  It  was  there  held  that  au- 
thority by  a  husband  to  his  wife  to  give  notes,  will  not  subject  the  husband  to 
the  payment  of  a  note  given  by  the  wife,  in  Iter  own  name,  without  reference  in 
the  bod}"  of  the  note,  or  in  the  signature,  to  the  name  of  the  husband.  A  note 
to  be  binding  in  such  a  case  must  purport  on  its  face  to  have  been  given  by  the 
wife,  as  the  agent,  or  on  behalf  of  the  husband.  The  case  of  Spencer  v.  Field,  10 
Wend. ,  88,  carried  the  principle  much  farther  than  Minard  v.  Mean,  and  probably 
to  a  greater  length  than  would  be  warranted  by  the  more  recent  cases.  It  was 
there  held  that  a  contract,  to  be  obligator}-  upon  a  principal,  when  made  by  an 
agent,  must  be  made  in  the  name  of  the  principal.  If  the  agent  contract  in  his 
own  name,  describing  Jiimself  as  agent  or  attorney,  for  his  principal,  the  contract 
is  the  conti'act  of  the  attorney,  and  not  of  the  principal.  Thus  A.  being  prin- 
cipal, and  B.  his  agent,  if  B.  sign  a  contract,  "B.  for  A.,"  this  is  the  contract 
of  the  agent  B.  In  ]S"ewcomb  v.  Clarke,  1  Denio,  226,  it  was  held  that  an 
action  upon  an  express  contract  must,  except  in  cases  of  negotiable  paper,  be 
brought  in  the  name  of  the  party  to  whom  it  was  made;  and  it  is  not  competent 
to  show  by  parol  that  the  promisee  was  the  agent  of  another  person,  for  the 
purpose  of  enabling  such  person  to  sue  in  his  name  on  the  agreement.  And 
the  decision,  as  we  have  seen,  was  upheld  in  Fenly  v.  Stewart,  5  Sandf.,  101. 
Williams  v.  Crislee,  4  Duer,  29,  is  an  additional  and  decisive  authority  on  this 
point.  Bosworth,  J.,  in  delivering  the  opinion  of  the  court,  said,  "  We  consider 
the  doctrine  well  settled,  that  every  written  contract  made  by  an  agent,  in  order 
to  be  binding  upon  his  principal,  must  purport  on  its  face  to  be  made  by  the 
principal,  and  must  be  executed  in  his  name,  and  not  in  the  name  of  the  agent." 
' '  It  cannot  be  shown  by  parol  that  the  alleged  agent,  in  signing  his  own  name 
to  the  contract,  in  fact  signed  his  name  as  agent,  and  thus  subvert  a  contract, 
which,  on  its  face,  is  his  own,  into  a  contract  of  his  alleged  principal,  and  make 
it  enforceable  as  such.  This  would  be  altering  the  plain  meaning  and  clear 
legal  import  of  written  contracts,  by  unwritten  evidence,  which  is  inadmissible." 
See  Evans  v.  Wells,  22  Wend.,  337;  Stephens  v.  Cooper,  1  John.  Ch,,  429.  In 
Massachusetts  the  rule  has  not  been  uniform.    The  case  of  Huntingdon  v. 


116        FRY  ON  SPECIFIC  PEKFOKMANCE  OF  CONTRACTS. 

siderations  as  to  the  reliance  of  one  party  on  the  personal 
qualities  of  the  other,  which  have  been  referred  to  in  con- 
sidering how  far  the  benefit  of  a  contract  is  assignable  in 
equity. (^)    Thus,  it  appears  clear  that,  if  A.  contract  with 

(g)  See  supra,  §  203  et  seq. 

Knox  7  Cusli.,  371,  mther  inclines  to  the  admission  of  parol  evidence  to  charge 
the  undisclosed  principal,  althonsjh  the  case  seems  to  have  been  decided  in  favor 
of  the  plaintiff,  upon  the  ground  that  the  action  was  not  brought  upon  the 
written  contract  itself,  but  for  the  price  of  the  goods.     A  contract  was  made 
by  one  Georo-e  B.  Huntingdon  for  the  sale  and  delivery  of  barli.     Held,  that 
the  bark  being  tlie  property  of  Mehitable  Hunt,  parol  evidence  was  admissible 
to  show  that  the  contract  was  made  for  her  benefit,  and  that  she  was  entitled 
to  recover  upon  it,  although  the  first  payment  had  been  made  to  George  B. 
Huntingdon.     Sec  Long  V.  Colburn,   11  Mass.,  97  ;   Emerson  v.  Providence 
Man   Co.,  12  id.,  237;  Ballou  v.  Talbot,  16  id.,  461,  and  Man  v.  Chandler.  9 
id    335;  Contra.Tucker  v.  Bass,  5  id  ,  164.     In  Stackpole  v.  Arnold,  11  Mass., 
27 '  Chief -Justice  Parker,  in  cases  of  this  nature,  accepts  o\\\j  the  actual  signers 
of 'the  contract  as  parties  to  the  suit.     But  in  a  later  decision— the  New  Eng- 
land Mar.  Ins.  Co.  v.  De  Wolfe,  8  Pick.,  .56-i-he  restricts  the  rule  to  instruments 
under  seal.     In  the  case  of  the  Bank  of  British  North  America,  5  Gray  (Mass.), 
567,  it  was  held  that  a  bill  of  exchange  drawn  by  an  agent  in  his  own  name, 
does  not  bind  his  principal,  though  made  for  his  benefit,  and  containing  a 
direction  to  the  drawee  to  charge  the  amount  thereof  to  his  account.     The  law 
of  Kentucky  is  illustrated  in  the  case  of  Violett  v.  Powell,  10  B.  Monr.,  347. 
It  was  there  held,  that  in  parol  contracts,  the  principal  is  bound  by  any  of  them 
made  by  the  agent  withm  the  scope  of  his  authority,  given,  or  subsequently 
recognized,  although  the  contracts  are  made  in  the  name  of  the  agent,  appear- 
ing, at  the  time,  to  act  for  himself,  so  that,  in  fact,  the  principal  could  not  have 
been  made  responsible.     It  was  further  decided,  that  if  an  agent  take  a  bond  to 
himself  instead  of  his  principal,  the  parol  contract  is  so  far  merged  in  the  writ- 
ten agreement  that  the  principal  cannot  maintain  an  action  on  the  contract  in 
his  own  name,  but  it  must  be  in  the  name  of  his  agent  in  the  written  agree- 
ment.    But  the  contract  made  by  the  agent  is  the  contract  of  the  principal,  in 
case  he  is  defendant.     And  if  the  agency  is  disclosed  at  the  time  of  the  con- 
tract, although  it  be  by  deed  in  writing,  if  the  agent  contracts  as  such,  the 
principal  may  be  sued  in  an  action  at  law.     And  if  the  principal  is  not  known 
at  the  time  of  the  contract,  and  is  subsequently  discovered,  the  other  party 
may  sue  either  principal  or  agent,  at  his  opinion.     In  Georgia,  an  instrument 
executed  by  an  agent  will  be  held  binding  upon  the  principal,  only  where  it  is 
evident  that  the  "credit  was  not  given  to  the  agent,  and  the  name  of  the  prin- 
cipal was  disclosed  at  the  time  of  the  transaction.    Merch.ints'  Bank  v.  Central 
Banli,  1  Kelly,  418.     In  Michigan  it  is  said,  that  where  it  distinctly  appears  in 
the  body  of  a  parol  agreement,  signed  by  an  agent  in  his  own  name,  without 
the  addition  of  the  name  of  the  principal,  that  the  principal  is  the  contracting 
party,  the  agreement  will  be  construed  to  be  that  of  the  principal,  and  not  of 
an  agent.     City  of  Detroit  v.  Jackson,  1  Doug.,  106.     In  Alabama  the  same 
rule  is  followed  as  in  the  State  of  New  York.     Clealand  v.  Walker,  1  Ala., 
1058;   McTyer  v.  Steele,  26    id.,  487.     And  see  Dawson    v.  Cotton,  26  Ala., 
591,  a  case  of  a  promissory  note  under  seal.     In  Mississippi,  it  was  decided  in 
Edwards  v.  Simmons,  27  ISIiss.  (5  Cush.),  302,  that  where  A.  borrowed  money 
of  B.  and  gave  his  note  for  it,  and  C.  signed  his  name  as  security,  trusting 
alone  to  A.,  who  did  not  disclose  that  he  acted  as  agent  for  D.  or  any  body, 
and  B.  sued  D.,  alleging  that  A.  acted  as  his  agent,  D.  could  not  be  made  liable 
to  B.  unless  proved  to  be  the  party  trusted.     In  California,  it  was  held  in  Ruiz 
V.  Norton,  4  Cal.,  355,  that  the  principal  may  sue  on  a  written  contract,  made 
and  signed  by  his  agent,  without  disclosing  him  as  principal ;  but  in  order  to 
maintain  the  action,  he  must  show  the  agency  and  the  power  of  the  agent  to 
bind  him  at  the  time ;  and  the  same  defenses  would  be  available  against  the 
newly  discovered  principal,   as  against  the  agent  with  whom  he  dealt  as 
principal. 


AGENCY.  117 

B.  for  the  performance  of  anything  in  which  B.  may  be 
reasonably  taken  to  have  relied  on  A.'s  personal  character 
or  qualities,  A.  cannot  declare  himself  the  agent  of  C.  so  as 
to  place  him  in  the  same  position  as  regards  B.  that  A.  held  ; 
and,  again,  if  A.  were  to  contract  with  B.  for  the  purchase 
from  him  of  an  estate  whicli  was  the  property  of  B.,  B. 
could  not  afterwards  declare  himself  the  agent  of  C. ;  for 

C,  not  having  the  estate,  could  not  perform  the  contract. 
And  it  may,  it  is  conceived,  be  laid  down  that  in  no  case 
can  a  contracting  party  declare  himself  the  agent  of  an  un- 
named principal,  except  where  the  contract,  if  really  made 
by  the  contracting  party,  might  have  been  assigned  by  him 
to  the  party  suing  as  principal. 

§  240.  In  tliese  cases  the  agent  is  not  a  necessary  party 
to  the  action,  (7^)  unless  the  agency  be  not  proved,  or  there  be 
special  circumstances  which  may  render  it  proper  to  make 
him  a  defendant ;  as  where  the  agent  claimed  to  have  en- 
tered into  the  contract  for  his  own  benefit.  (/) 

§241.  The  question  may  sometimes  arise  whether  a 
party  has,  on  the  construction  of  the  contract,  entered  into 
it  as  principal  or  as  agent.  The  Commissioners  of  Woods 
and  Forests  were  by  statute  authorized  to  enter  into  con- 
tracts, but  the  estate  remained  in  the  crowm  :  on  a  contract 
entered  into  by  them  under  this  authority,  it  was  held  on 
demurrer  that  they  could  not  be  sued  for  specific  perform- 
ance, but  that  the  contract  must  be  enforced  in  the  ordinary 
way  in  the  case  of  estates  vested  in  the  crown. (./) 

§  243.  In  some  cases  both  agent  and  principal  may  be 
sued.  Thus  in  Waller  v.  Ilendon  (k)  there  was  a  contract 
with  the  plaintiff  for  the  purchase  and  renewal  of  a  lease  in 
the  name  of  Ilendon  or  such  person  as  he  should  nominate 
or  appoint.  He  nominated  Cox,  declaring  he  bought  for 
him  as  his  agent.  It  was  ordered  by  Lord  Macclesfield, 
affirming  a  decision  at  the  rolls,  in  a  suit  (in  which  both 
Hendon  and  Cox  were  defendants),  for  payment  of  the  resi- 
due of  the  purchase-money,  that  they  should  both  pay  it, 
and  that  if  Ilendon  paid  it  he  might  prosecute  the  decree 
against  Cox. 

(ft)  Klnjrsley  v.  Younp.  Dan.  Ch.  Pr.,  177.  and  cf.  Marshall  v.  Simlilen,  7  Ha  ,  -Ji^^,  and 

(i)  Taylor  V.  Salmon,  4  My  &Cr  ,134.  ^ee,  Weiee  v.  Wanlle,  I..  R.  Ill  Eq.,  171. 

also,  Lees  v.  Nuttall,  1  11.  &  My.,  53;  Nel-       Q)  Nurse  v.  Lord  Seymour,  13  Bear., -254. 

thorpe  V.  Ilolgate,  1  Coll.,  203;  supra,  §  155;        (*.)  5  Vin.  Ab.,  52-1,  pi.  45. 


118        FRY  ON  SPECIFIC  PEUFORMANCE  OF  CONTRACTS. 

§  •243.  Directors  of  a  public  company  are  agents  of  the 
company,  and  their  personal  liability  upon  contracts  entered 
into  by  them  is  governed  by  the  ordinary  law  of  principal 
and  agent.  "Wherever  an  agent  is  liable,"  said  Lord 
Cairns°(then  L.  J.),  in  Ferguson  v.  Wilson, (7)  "those  di- 
rectors would  be  liable ;  where  the  liability  would  attach 
to  the  principal  and  the  principal  only,  the  liability  is  the 
liability  of  the  company."  Accordingly  it  was  held,  in  the 
last-mentioned  case,  that  the  directors  of  a  railway  company 
were  not  liable  to  indemnify  or  pay  damages  to  the  plaintiff 
in  respect  of  a  resolution  of  the  board  under  which  the 
plaintiff  alleged  that  he  was  entitled  to  liave  shares  in  the 
company  allotted  to  him  ;  the  resolution  being,  if  anything, 
a  contract  between  the  plaintiff  and  the  company.  On  the 
other  Imnd,  where  directors  of  a  company  signed  a  con- 
tract (for  a  lease),  on  the  face  of  which  the  court  considered 
the  presumption  to  arise  that  they  were,  as  between  them 
and  the  plaintiff  (the  lessor)  principals,  they  were  held  per- 
sonally liable  to  perform  the  contract,  notwithstanding  that 
the  plaintiff  had,  in  correspondence,  treated  the  company 
as  liable  to  execute  the  contract,  (m) 

§  944.  In  the  case  of  a  contract  by  an  agent  as  a  princi- 
pal, the  agent  might,  at  common  law,  sue  in  his  own  name, 
without  in  any  way  joining  the  real  principal.  In  chan- 
cery, however,  a  suit  could  not  be  maintained  by  the  agent 
unless  his  real  principal  were  in  some  shape  a  party  to  the 
suit,  {n) 

§  245.  The  principle  already  stated  (o)  that  a  person  ap- 
pearing on  a  contract  as  i^rincipal,  though  really  an  agent, 
is  yet  liable  on  thn  contract  as  principal,  applies  in  cases  of 
specific  performance  in  equity  (j:»)  as  Avell  as  in  actions  for 
damages, (^)  and  accordingly  such  an  agent  may  be  sued 
without  the  principal.  In  Chadwick  v.  Maden,(r)  where 
the  contract  was  in  the  name  of  the  agent,  who  contended 
that,  being  merely  such,  the  bill  should  be  dismissed  as 
against  him,  Turner,  Y.  C,  said  that  "the  signature  of  the 
agi'eement  was  sufficient  to  subject  him  to  the  liability  of 

(0  T..  R.  2  Gil.,  77.    Cf.  Wilson  v.   Lord  (p)  Corless  v   Sparlincr,  I.  R  S  Eq.,33.i;  21 

Bury,  29  ^V .  R.,  272-3.  W.  R..  876,  Saxon  v.  Blake,  29  Beav.,  43S 

(m)  Kay  V.  Johnson,  2  H.  &  M.,  118.  (/?)  .Tones  v.  LUflerlale,  6   A     &  E.,  486; 

(n)  Per  Lord  Lyndhurst  in  Small  v.  Alt-  Mag-ec  v.  Atkinson,  2  M.  &  \V.,  44  s  Cf  l-onjj 

wood,  You.,  457.    See  S.  C  ,  6  CI  &  Fin  ,  232.  v.  MilUir,  4  C.  P.  D  ,  4.iO. 

(0)  Supra,  §  238.  (,0  9  Ha.,  191. 


AGENCY.  119 

performing  it."     In  that  case,  after  a  lot  had  been  knocked 
down  to  him,  A.  dechired  himself  an  agent  for  C,  who  was 
present,  and  asked  to  have  the  contract  drawn  np  in  C.'s 
name,  which  was  refused,  and  then  signed  it  himself ;  it  was 
there  held  that  A.  was  personally  liable  on  the  contract. 
It  would,  however,  appear  on  principle,  that  if,  at  the  time 
the  contract  was  signed,  both  A.  and  B.  understood  that  A. 
was  acting  merely  as  agent  for  C,  and  B.  were  afterwards 
to  sue  A.  for  specific  performance  as  principal,  A.  might 
allege  the  understanding  between  himself  and  B.  at  the 
time,  and  give  parol  evidence  of  it,  and  that,  if  the  allega- 
tion were  proved,  it  might  furnish  a  valid  defence.     And 
in  many  cases  it  is  obvious  that  an  action  for  specific  per- 
formance against  an  agent  alone  would  fail,  from  the  inca- 
pacity of  the  agent  to  perform  it.(s) 

§  S46.  There  are,  however,  special  circumstances  which 
sometimes  occur  and  make  it  proper  that  an  agent  should 
be  a  party  to  an  action  for  specific  performance.  In  almost 
all  these  cases  the  agent  is  an  agent  and  something  more. 

(1)  The  claim  by  the  agent  to  an  interest  in  the  property 
in  question  is  one  of  these  cases ;  and  there  the  agent  may 
be  a  party.  (^) 

(2)  The  contract,  as  we  have  already  seen,  may  be  so 
framed  as  to  give  a  right  of  action  against  both  principal 
and  agent.  (?/) 

(3)  The  agent  of  the  vendor  often  becomes  by  the  contract 
a  stakeholder  of  the  deposit  paid  by  the  purchaser,  and  in 
that  character  he  may  be  a  proper  party  to  an  action. 

§  247.  Thus  where  a  stakeholder  threatens  to  pay  over 
the  deposit  to  the  vendor  he  may  properly  be  made  a  party  to 
an  action  by  the  purchaser. (r)  Where  the  stakeholder  had 
paid  over  the  deposit  to  the  vendor,  and  difficulties  had  arisen 
in  completing  the  contract  because  the  deposit  was  not  forth- 
coming, the  purchaser  made  the  stakeholder  a  party  to  a 
bill  fiied  for  specific  performance,  and  was  held  entitled  to 
a  declaration  that  the  stakeholder  was  (jointly  with  the 
vendor)  liable  to  make  good  the  deposit,  which  was  required 
to  discharge  a  mortgage  on  the  property. (?«)     So,  again,  the 

(<t^  Spp  infra  S  ^69  et  sea.  (")  Waller  v.  Ilendon,  supra,  §  ^ii. 

Ilyl^r  v.^Salmon.  ^4  M..  &  Cr..  134;  (v>  Cutis  v.  Tho.ley   13  Sin,     -.HHJ:,!  Coll.. 

Heard  V   Pillev,  L.  R.  4  Ch  .  54S.  Distinguish  2-23,  n.;  Feiiton  v.  llughis   ,  ^  es..  2S,. 

Gla/brJok  V  Richardson.  -23  W.  R..  51.  (w)  Wig;:ms  v.  Lord.  4  Beav.,  30. 


120        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

auctioneer  has  repeatedly  been  made  a  defendant  to  bills 
by  the  vendor  or  those  claiming  under  him,  and  has  been 
ordered  to  pay  the  deposit  (less  his  charge  [re])  into  court.  (2/) 
And  on  account  of  the  auctioneer's  right  to  bring  an  action 
for  the  deposit,  and  of  his  liability  in  respect  of  it,  it  has 
been  said  that  he  can  be  made  a  co-plaintiff  with  the  ven- 
dor ;{z)  or  he  may  interplead. (a) 

§  248.  Still,  although  it  is  the  law  that  a  stakeholder  or 
auctioneer  holding  a  deposit  may  be  made  a  defendant,  the 
proi^er  practice  is  not  to  make  him  a  defendant  when  the 
deposit  which  he  holds  is  small ;  unless,  being  applied  to 
pay  it  into  court,  he  refuses  to  do  so.  Where  the  deposit 
is  large,  the  depositee  may  properly  be  made  a  defendant  if 
he  has  not  paid  it  into  court  before  action. (&) 

§  249.  The  auctioneer  being  agent  for  both  vendor  and 
purchaser,  and  receiving  the  deposit  as  a  stakeholder,  is 
liable  to  an  action  for  it  if  the  sale  goes  off,(c)  although  he 
be  also  solicitor  for  the  vendor  ;(<:Z)  and  where  the  contract 
provided  "that  a  deposit  of  £350  should  be  paid  in  part  of 
the  purchase-money  to"  the  vendor's  solicitors,  it  was  held 
that  they  were  stakeholders  ;(e)  but  the  vendor's  agents, (/) 
including  solicitors  to  whom  the  deposit  is  paid,  "  as  agents 
for  the  vendor,"  are  not  stakeholders. (^)' 

(x)  As  to  this,  see  St.  Leon.  Vend.,  51-3,  (c)  Grey  v.  Gutterulge,  1  Man.  &  Ry.,614. 

and  Blenkhorn  v.  Penrose,  29  W.  R..  -239.  Harington  v.  Hoggart,  1  B.  &  Ad,  577- 

(y)  Anneeley  v.    Muggridge,  I  Mad.,  593;  id)  Edwards  v.  Holding,  5  Taun.,  815. 

Yates  V.  Farebrother,  4  id.,  239.    Cf.  Blenk-  (e)   Wiggins  v.  Lord,  4  Beav  ,  30. 

horn  V.  Penroee,  29  W.  R.,  239.  (  f)  Duke  of  Xorlolk  v.  Worthy,  1  Camp., 

(z)  Dan.  (Jb.  Pr.,  17S.  337;  Hurley  v.  Baker,  16  M.  &  W.,  26. 

(a)  Hoggart  v.  Cutts,  Cr.  &  P.,  197.  (g)  Edgell  v.  Day,  L.  R.  1  C.  P  ,  80. 

(6)  Earl  of  Egmont  v.  Smith,  6  Ch.  D.,  469, 
474-5. 

'  Pleadinffs,  what  they  must  show.']  The  pleadings  must  render  clear  the 
rights  of  the  parties  seeking  specific  performance;  if  they  do  not  do  so 
it  will  be  refused.  "Waters  v.  Brown,  7  .1.  .J.  Marsh.,  123.  Fraud  must  be 
alleged.  Lawyer  v.  Mills,  20  L.  J.  Ch  ,  80;  Maguioc  v.  Thompson,  2  Wall.  .Jr., 
209;  Ellerbee  v.  Ellerbee,  42  Ala.,  643.  The  plaintiff  must  show  that  he  can- 
not be  indemnified  in  damages  if  the  contract  is  broken.  Powel  v.  Central 
Plaukroad  Co.,  24  Ala.,  441;  McCloud  v.  White,  5  Minn.,  178.  A  demurrer 
will  lie  if  he  does  not  do  so.  Bottsford  v.  Beers,  11  Conn.,  369;  Prewitt  v. 
Jenkins,  1  Blackf.,  294;  Noyes  v.  Marsh,  123  Mass.,  286;  Kauffman's  App. , 
55  Pa.  St.,  383.  In  an  action  for  the  specific  performance  of  an  agreement  to 
sell  land,  it  was  held  that  the  bill  might  be  so  shaped  as  either  to  obtain  specific 
performance,  or  that  the  contract  be  canceled.  Mills  v.  3Ietcalf,  1  A.  K. 
Marsh.,  477.  In  Pitts  v.  Cable,  44  111.,  103,  it  was  held  that  a  bill  which  seeks 
specific  performance  must  be  framed  with  that  view.  Land  was  sold  under  an 
order  of  the  court,  and  the  purchaser  failed  to  complete  his  purchase;  the 
officer  making  the  sale,  who  is  the  only  necessary  party  complainant,  could  file 
his  bill  for  specific  performance,  without  direction  of  the  court;  a  demurrer 
will  not  lie.     Boune  v.  Bitter,  26  N.  J.  Eq.,  456.     The  plaintiff  must  show 


AGENCY.  121 

aflBimatively  that  he  is  entitled  to  relief.  He  need  not,  however,  allege  that 
the  defendant  has  the  ability  to  perfomi.  ^lorev  v.  Farmers' Loan,  etc..  14 
N.  Y.,  302;  Clough  v.  Hart,  8  Kan.,  487;  Greenfield  v.  Carlton,  30  Ark.,  547. 
The  rules  of  pleacling  are  le.ss  stringent  than  they  are  at  law;  but  tiny  are 
equally  regulated  by  principle.  Adams'  Eq.,  301.  As  to  what  was  a  sufliciont 
complaint  in  an  action  to  compel  a  convej'ance,  see  Morrow  v.  Lawrence,  7 
"Wis.,  .~)74.  In  the  case  of  a  grant,  a  deed  must  be  alleged.  King  v  Tice,  3 
Ired.  Eq.,  5G8.  Matters  which  the  court  takes  judicial  notice  of,  need  not  be 
set  out  in  the  pleadings.  United  States  v.  La  Vengeance,  3  Dallas,  2'J7 ;  Owings 
V.  Hall,  9  Pet.,  607.  '  Where  the  Statute  of  Frauds  applies  to  the  contract,  the 
bills  is  demurrable.  Chambers  v.  Lecompte,  9  Mo.,  575.  As  to  where  the 
statute  of  limitations  applies,  see  Dunlap  v.  Gibbs,  4  Yerg.,  94;  "Wisner  v.  Bar- 
nett,  4  Wash.  C.  C,  631;  Field  v.  Wilson,  6  B.  Mon.,  479;  Maxwell  v.  Ken- 
ned}', 8  How.,  210.  "Where  a  contract  was  to  have  been  approved  by  a  corpo- 
ration, and  was  signed  by  its  president,  the  fact  that  he  was  such  officer  must 
be  set  forth.     Buffalo  Catholic  Inst.  v.  Betta  et  al.,  87  N.  Y.,  250. 

Bule  (I.S  to  loliut  the  bill  imid  shoic.']  Great  accuracy  of  averment,  and  strict 
corresponding  proof,  are  required  in  an  action  for  specific  performance.  Daniel 
V.  Collins,  57  Ala.,  625;  Hunter  v.  Daniel,  4  Hare,  4'iO;  Forsythe  v.  Clarke,  3 
"Wend.,  657.  The  contract  should  be  particularly  stated.  Light  St.  Bridge 
Co.  v.  Bannon,  47  Ind.,  129.  A  waiver  of  objection  to  title  was  the  ground 
relied  upon  for  specific  performance.  Held,  that  that  question  must  be  put  in 
issue  by  the  pleadings,  in  order  that  evidence  might  be  given  to  prove  such 
waiver.  Page  v.  Greeley,  75  111.,  400.  After  a  decree  had  been  made;  held, 
that  it  should  not  be  set  aside,  because  of  defects  in  the  petition.  Despaiu  v. 
Carter.  21  Mo.,  231.  The  legal  title  must  be  .shown  to  be  subordinate  to  the 
equitable  title  under  which  the  plaintiff  claims.  Cameron  v.  Abbott,  3  Ala., 
415.  "Where  an  action  is  brought  against  heirs,  and  to  specifically  enforce  their 
ancestor's  contract,  it  must  be  averred  and  proved  that  the  estate  is  not  in 
process  of  administration,  and  that  the  defendant  has  assets  of  such  ancestor 
in  his  hands.  Taylor  v.  Roland,  26  Texas,  293.  A.  assigned  to  B.  all  his  in- 
terest in  an  undivided  estate.  Held,  that  B.'s  bill  must  show  that  A.,  at  the 
time  of  the  assignment,  had  an  interest,  and  furnish  the  data  from  which  such 
interest  might  be  ascertained.  Bogan  v.  Camp.,  30  Ala.,  276.  The  pleadings 
need  not  allege  that  the  vendor  died  seized,  or  that  title  is  in  defendant.  Moore 
V.  Burvams,  34  Barb.,  173.  Where  an  agent  executed  a  contract,  the  plcad- 
ing-s  must  .show  that  he  was  duly  authorized.  Roby  v.  Cossitt,  78  111.,  638; 
Columbine  v.  Chichester,  2  Phil.,  27;  coittra,  Harding.s  v.  Parshall,  56  111.,  219; 
Fisher  v.  Bowser,  41  Texas,  222.  They  need  not  show  the  mode  of  execution, 
nor  the  manner  in  which  the  agreement  was  satisfied  by  the  principal.  Ilan- 
chett  V.  McQueen,  32  Mich.,  22;  Harding  v.  Parshall,  56  111  ,  219;  Gilpin  v. 
Watts,  1  Col.,  479.  As  to  tru.st  funds  in  agent's  hands,  see  Gerrish  v.  Toune, 
3  Gray,  82.  All  the  essential  terms  of  a  contract  must  be  clearly  and  definitely 
alleged  as  well  as  proved.  .lones  v.  Jones.  49  Texas,  683;  Anthony  v.  Left- 
witch,  3  Rand.  (Va.),  238;  Gaskins  v.  Reebles,  44  Texas,  390;  Wiley  v.  Mul- 
lins,  22  Ark.,  294.  Where  the  object  of  the  action  is  to  charge  particular 
defendants,  the  pleadings  must  show  a  ca.se  against  them  by  proper  legal 
averments.  Seager  v  Burns,  4  3Iinu.,  141.  It  is"  no  objection  that  the  exact 
agreement  relied  upon,  is  set  out  in  the  pleadings.  New  Barbadoes  Toll  Bridge 
Co.  v.  "Vreeland,  4  N.  J.  Eq.,  157.  Where  the  contract  relied  upon  is  required 
to  be  in  writing,  the  pleadings  will  be  had  on  demurrer,  if  thev  do  not  show 
that  it  was  so.  Barkworth  v.  Young.  4  Deem,  1 ;  Logan  v.  Bond,  13  Yes.,  192; 
Piercy  V.  Adams,  22  Ga.,  109;  Carlisle  v.  Brennan,  67  Ind.,  12.  Walworth, 
Chancellor,  said  in  Cosme  v.  Graham,  2  Paige  Ch.,  177:  "If  it  is  stated  gener- 
ally that  an  agreement  or  contract  was  made,  the  court  will  presume  it  a  legal 
contract  until  the  contrary  appears ;  and  the  defendant  niu.^t  either  plead  the 
fact  that  it  was  not^in  writing,  or  insist  upon  his  (lefen.se  in  the  answer."  See, 
also,  Wildbachu  v.  Bibidoux";  11  Mo.,  659;  Richards  v.  Richards,  9  Gray,  314; 
Cran.shou  v.  Smith,  6  R.  I..  231;  Farnham  v.  Clements.  51  Me..  426;  Dudley 
V.  Batchelder,  53  id.,  403;  Ilubbel  v.  Courtney,  5  S.  C,  87.  Specific  perform- 
ance will  not  be  decreed  of  an  agreement  which  differs  materially  from  the 
one  set  out  in  the  pleadings.  Han-is  v.  Knickerbocker,  5  Wend..  638.  As  to 
how  land  should  be  descrilied  in  pleadings,  see  Gray  v.  Davis,  3  J.  J.  Marsh., 


122        FRY  OX  SPECIFIC  PEUFOKMANCE  OF  CONTRACTS. 

381;  Allen  v.  Chambers,  4  Ired.  Eq.,  135;  Mullory  v  Malloiy,  1  Bush.  (N.  C), 
Eq.,  80;  Sanderson  v.  Stockdale,  11  :\W.,  5(33;  Bast  v.  Alford,  20  Texas,  226; 
Goodenow  v.  Curtis,  18  Mich.,  298;  Baker  v.  Hathaway,  5  Allen,  103.  In 
Abbott  V.  Dunivau,  34  INIo.,  148,  it  was  held  that  either  party  might  aver  and 
prove  a  mistake  in  the  description  of  the  land,  in  a  contract  sought  to  be  spe- 
•cifically  enforced.  "Where  a  vendor  seeks  to  enforce  specific  performance  by  a 
sale  of"  the  land  and  application  of  the  proceeds  to  the  satisfaction  of  the  con- 
sideration, he  should  allege  in  the  pleadings,  and  prove,  that  the  defendant 
agreed  to  pay  the  consideration.  Copehart  v.  Hall,  6  W.  Va.,  547;  Park  v. 
Johnson,  4  Alien.  259  As  to  allegations  of  performance,  all  the  facts  consti- 
tuting performance  should  be  alleged  in  the  pleadings;  it  is  not  enough  to  aver 
"  that  he  has  done  all  that  he  is  Ixjund  by  the  contract  to  do,"  or  "  that  he  has 
offered,  and  has  always  been  ready  and  willing,  to  comply  with  his  contract." 
The  pleadings  must  show  that  the  complainant  has  fully  performed  everything 
iiecessarv  to  entitle  him  to  performance  of  the  contract  bj^  the  defendant. 
Bates  v.'Wheeler,  2  111.,  54;  Underbill  v.  Allen,  18  Ark.,  460;  Brown  v.  Hayes, 
33  Ga.  Supp.,  13(i:  I\[cLerov  v.  Tulane,  34  Ala.,  78;  Bell  v.  Thompson,  id., 
633;  Columbine  v.  Chichester,  2  Phil.,  27;  Davis  v.  Harrison,  4  Litt.,  261; 
Hart  V.  ]\IcClellan,  41  Ala.,  251;  Duff  v.  Fisher,  15  Cal.,  375;  Low  v.  Heck,  3 
W.  Va  ,  680;  Koy  v.  Willink,  4  Sandf.  Ch..  525;  Bass  v.  Gilliland,  5  Ala.,  761; 
Moore  v.  Higbee,"45  Ind.,  487.  As  to  insufficient  allegations  relative  to  a  trust, 
see  Pearson  v.  East,  36  Ind..  27;  Hanser  v.  Roth,  37  id.,  89.  "Where  the  plead- 
ings alleged  that  the  purchase  money  had  all  been  paid,  and  offered  to  pay 
whatever  sum  might  be  found  to  be  due — held,  sufKcieut,  although  a  part  of 
the  money  was  found  to  be  still  due.  Mix  v.  Beach,  46  III,  811.  Partial  per- 
formance was  alleged  in  the  pleadings.  Held,  that  the  plaintiff  need  not  form- 
ally allege  a  readiness  to  complete  the  performance.  Hatcher  v.  Hatcher,  1 
McMullan  Ch.,  311. 

As  to  ■mutual  and  concurrent  acts.'\  The  pleadings  in  an  action  to  enforce  the 
specific  performance  of  an  agreement,  in  which  the  acts  to  be  done  by  the  par- 
ties are  mutual  and  concurrent,  was  held  good,  where  they  alleged  an  offer 
to  perform  hj  the  plaintiff:  and  a  refusal  by  the  defendant.  St.  Paul  Div.  v. 
Brown,  9  Minn.,  157. 

As  to  amendments,  see  Chess'  App.,  4  Pa.  St.,  52. 

As  to  consent  ]  "Where  consent  is  necessary  in  order  to  enable  the  plaintiff 
to  perform  the  contract — held,  that  the  pleadings  need  not  allege  that  such 
consent  was  obtained.     Smith  v.  Capron,  7  Hare,  185. 

^4.'*  to  refused  and  demand.']  "Where  an  action  is  brought  to  enforce  an  obli- 
gation to  convey,  absolute  on  its  face,  and  the  consideration  is  acknowledged, 
the  pleadings  need  only  aver  a  request  and  a  refusal.  Founger  v.  "Welch,  22 
Texas,  417;  Holman  v.'Aiswell,  15  id.,  394.  The  pleadings  should  state  that 
the  vendor  had  been  requested  to  make  title;  his  insolvency  will  not  excuse  the 
necessity  of  such  request  Carter  v.  Thompson.  41  Ala.,  375.  In  Dodge  v. 
("lark,  17  Cal.,  586,  the  omission  of  an  allegation  of  demand  was  held  to  be 
fatal. 

As  to  dn)7iarjes.]  The  particular  injury  must  be  alleged  and  proved,  where 
damages  are  claimed;  it  will  not  answer  to  aver  that  the  plaintiff  has  sustained 
damages.  Clinock  v.  March,  of  Ely,  2  H.  ct  M.,  220.  "UHiere  a  note  has  been 
lost,  the  pleadings  must  allege  that  the  same  has  not  been  paid.  Mason  v. 
Fo.ster,  3  J.  J.  Mar.sh.,  283. 

Belief;  general  jyrayer  for.]  The  complaint  should  be  dismissed,  notwith- 
standing the  complainant  may  be  entitled  to  some  relief  :  where  the  pleadings 
contain  no  prayer  for  general  relief,  and  where  they  do  not  justify  the  relief 
prayed  for.  Boyl  v.  Laird,  2  Wis.,  431;  State  of  Conn.  v.  Sheridan,  1  Clark 
(N.  Y.),  533.  It  is  error  to  grant  it,  where  neither  party  asks  for  specific  per- 
formance.    Cantrell  v.  Rice,  6  J.  J.  Marsh.,  338. 

Afftrmntive  relief^eross-bill.]  The  defendant  must  file  a  cross-bill,  if  he 
wishes  affirmative  relief,  in  an  action  for  specific  performance.  Hanna  v.  Rat- 
1ikin^  4:!  111.,  103;  Bussey  v.  Gart,  10  Humph.,  238;  Wright  v.  Delafield,  25 
N.  Y. ,  266.  Where  the  answer  admitted  the  contract,  no  cross-bill  need  be 
fid.      D  orsey  v.  Campbell,  1  Bland.  Ch.,  356.     Where  the  purchaser  files  a 


AGENCY.  123 

bill  for  specific  pei-formanco,  after  the  time  fixed  in  the  agreement,  tlie  vendor 
may,  by  answer,  subniit  to  perform,  and  file  a  cross-bill,  and  compel  the  pur- 
chaser also  to  perform.  Held,  that  he  cannot,  in  such  case,  resist  fulfillment, 
and,  after  depreciation  of  the  property,  enforce  specific  performance  against 
the  purchaser.     Tobey  v.  Freeman,  79  111.,  489. 

Bill  dismissed.^  The  cross-bill,  with  the  original  bill,  makes  but  one  action; 
-and.  when  the  origiuall  bill  is  dismissed,  such  dismissal  carries  with  it  the  dis- 
missal of  the  crossbill.  Elderkin  v.  Fitch,  2  Carter,  90.  The  cross-bill  is  a 
matter  of  defense,  and  it  should  not  set  up  anything  not  contained  in  the  origi- 
nal action.  May  v.  Armstrong,  3  J.  J.  Marsh.,  262;  Daniel  v.  Morrison,  6 
Dana,  18(3;  Fletcher  v.  Wilson';'  1  Lon.  &  Marsh.  Ch.,  376;  Gallatin  v  Erwin, 
Hopk.  Ch.,  48;  S.  C  8  Cow.,  301;  Josev  v.  Rogers,  13  Ga.,  478;  Slason  v. 
Wright,  14  Vt.,  208;  Rutland  v.  Page,  24*id.,  181;  Draper  v.  Gordon.  4  Sandf. 
•Ch.,  210.  In  Nelson  v.  Dunn,  \o  Ala.,  501,  it  was  held  that  a  cross  bill  is  not 
restricted  to  the  issues  of  the  original  action.  The  written  obligation  on  which 
the  claim  was  based,  was  set  out  in  the  plaintiff's  bill;  the  cross-bill  did  not  set 
it  out.     Held,  that  it  need  not  do  so.     Coe  v.  Lindley,  32  Iowa,  437. 

Equitable  counterclaim  under  the  Codes  of  the  several  States.']  The  equitable 
counterclaim  may  take  the  place  of  a  cross-bill,  under  the  system  of  pleadings 
adopted  I)v  the  codes  in  the  several  States  where  they  are  used.  McAbee  v. 
Randall,  41  Cal.,  136. 

Change  of  parties.']  When  a  cross-bill  is  filed  by  the  defendant,  in  which  he 
seeks  affirmative  relief,  he  becomes  the  plaintiff,  and  the  plaintiff  in  the  original 
action  becomes  the  defendant  in  the  cross-bill.  Ewing  v.  Patterson,  35  Ind., 
326. 

Statute  of  frauds— demurrer.']  The  statute  of  frauds  must,  in  all  ca.ses,  be 
pleaded ;  it  differs,  in  that  respect,  from  the  statute  of  limitations.  Where  it 
is  not  done,  a  general  demurrer  is  proper.  Ridgwa)--  v.  Wharton.  3  De  G  M. 
&G.,  691;  Wright  v.  Le  Clair,  4  Green  (Iowa),  420;  Field  v.  Hutchinson,  1 
Beav.,  599;  Wood  v.  Midgley,  5  De  G.  M.  &■  G.,  41;  Adams  v.  Patrick.  30  Vt., 
576;  Hallv.  Peer,  27111..  312;  Meach  v.  Perry,  1  D.  Chip  (Vt.),  182;  Dryer  v. 
Martin,  4  Scam.,  146;  Hollingshead  v.  ]\IcKenzie,  8  Ga.,  457;  Grant  v.  fcraig- 
miles,  1  Bibb.,  203.  A  general  denial  does  not  raise  the  issue  of  the  statute  of 
frauds.  Livesey  v.  Livesey,  30  Ind.,  3!)8  Where  the  answer  admitted  a  parol 
contract,  the  defendant  must  plead  the  statute  of  frauds,  in  order  to  avail  him- 
self of  it.  Irildbahra  v.  Robidoux,  11  Mo.,  659;  Walker  v.  Hill.  21  N.  J.  Bq.. 
191;  Albert  v.  AVinn,  5  Md.,  66;  Talbot  v.  Bowen,  1  A.  K.  Marsh.,  436;  Small 
V.  Awings,  1  Md.  t  h.,  363;  Artz  v.  Grove,  1  Md.,  456;  Newton  v.  Swazev,  8 
N.  H.,  5?;  Tilton  v.  Tilton,  9  id.,  385;  Dean  v.  Dean,  9  K  J.  Eq.,  425;  Smith 
Braisford,  1  Des.  Eq  ,  350;  Hutchinson  v.  Hutchinson,  4  Des.,  77;  Savir  v. 
Dulin,  6  Jones'  Eq.,  195;  Morrell  v.  Cooper,  65  Barb.,  51. 

Defense  that  land  is  homestead.]  Where  the  defendiint  wishes  to  avail  himself 
of  this  defense,  he  must  set  it  up  in  his  pleadings.  Brown  v.  Eaton,  21  Minn., 
409.  The  wife  refused  to  release  her  dower.  Held,  that  the  defense  would  not 
avail,  where  the  vendee  offered  to  v.^aive  the  release.  Carson  v.  ^lulranv,  49 
Pa.  St.,  88. 

Neic  matter.]  It  is  no  ground  for  denying  the  relief  asked  for,  that  new 
matter  has  been  set  up  not  responsive  to  the  allegations  of  the  bill,  and  not 
supported  by  the  proof.  Smoot  v.  Rea,  19  Md..  398;  see  Laverty  v.  Moore,  33 
N.  Y.,  658. 


124        FRY  OX  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 


PAET  III. 

OP  THE  DEFENSES  TO  THE  ACTION. 


CHAPTER  I. 

OF  THE  INCAPACITY  TO  CONTRACT. 

§  250.  The  incapacity  to  contract  of  either  of  the  parties 
to  a  contract  furnislies  ground  on  which  that  party  may 
resist  si^ecific  performance ;  and  on  the  principle  of  mutu- 
ality hereafter  to  be  considered  it  may  also  furnish  a  defense 
to  the  other  party,  though  himself  perfectly  competent. 
The  incapacity  to  contract,  and  the  incapacicy  to  execute  a 
contract,  are,  of  course,  different  questions ;  the  one  must 
be  judged  of  at  the  time  of  the  contract,  the  other  when  its 
performance  is  sought.' 

•  Personal  incapacity.^  It  is  a  perfect  defense  to  au  action  for  specific  per- 
formance, that  the  plaintiff,  at  the  time  of  filing  the  bill,  was  personally  in- 
capable of  performing.  Flight  v.  BoUand,  4  Russ.,  298;  Richards  v.  Green, 
23  N.  J.  Eq.,  538.  Specific  performance  will,  of  course,  not  be  decreed,  when 
the  defendant  cannot  perform  the  agreement.  This  is  true  even  where  he  has, 
by  his  wrongful  act,»made  it  impossible.  Green  v.  Smith,  1  Atk.,  .573;  Dan- 
forth  V.  Phila.  R.  R.  Co.,  30  K  J.  Eq.,  12;  Columbine  v.  Chichester,  2  Phila., 
27;  Hallett  v.  Middleton,  1  Russ.,  243;  Ellis  v.  Coleman,  4  (Jur.  S.),  350;  Phil- 
lips v.  Stanch,  20  Mich.,  369;  Dan  ton  v.  Stewart,  1  Cox,  258;  Greenaway  v.. 
Adams.  12  Ves.,  395;  Smith  y.  Kelley,  50  Me.,  64;  Gumpton  v.  Gumpton,  47 
Mo.,  37;  Renkin  v.  Hill,  49  Iowa,  270;  Stearns  v.  Beckham,  31  Gratt.,  379. 

Homestead  law  m  loica.]  In  this  State  a  husband  agreed  to  convey  land  in 
which  there  was  a  homestead  right  in  his  wife.  She  refused  to  consent.  Held, 
that  specific  performance  would  not  be  decreed.  Yost  v.  Devault,  9  Iowa,  60; 
Barrett  V.  Mendenhall,  42  id.,  296;  Long  v.  Brown,  66  id.,  160;  see  as  to  bad 
faith  in  the  parties  in  such  a  case.     Peeler  v.  Levy,  26  N.  J.  Eq.,  330. 

PartUd performance  only,  possible.']  It  is  the  substance,  rather  than  the  form 
of  contracts,  which  equity  regards;  and  the  impossibility  of  a  hteral  fulfill- 
ment will  not  operate  as  a  defense,  when  it  can  be  substantially  carried  out. 
Shaw  V.  Livermore,  2  Green  (Iowa),  338;  Phila.  R.  R.  Co.  v.  Lehigh,  etc.,  Co., 
36  Pa.  St.,  204;  Hart.  v.  Brand,  1  A.  K.  Marsh.,  159;  Oliver  v.  Crosswell,  43 
111.,  41. 

Partial  ability.]  A  defendant  must  perform,  so  far  as  he  is  able,  and  equity 
will  compel  him  to  do  so.  A  ratable  abatement  of  the  contract  may  be  de- 
creed. Rankin  v.  Maxwell,  2  A.  K.  Marsh.,  488;  Weatherford  v.  James,  2 
Ala.,  170;  Jacobs  v.  Sale,  2  Ired.  Eq.,  286;  Henry  v.  Lisles.  2  id.,  407;  Wright 
V.  Young  6  Wis.,  127:  Ketchum  v.  Stout.  1  Head  (Tenn.),  251 ;  Bell  v.  Thomp- 
«SS'  'it''^'?-',,^'^'^'  Ketchum  v.  Stout,  20  Ohio,  453;  Covell  v.  Cole,  16  Mich., 
223;  Marshall  v.  Caldwell,  41  Cal,  611;  Meek  v.  Walthall,  20  Ark.,  648. 


INCAPACITY  TO  CONTRACT.  125 

§  Sol,  The  question  as  to  the  capacity  of  ])ersons  to  con- 
tract, as  raised  in  actions  for  specific  performance,  being  for 
the  most  part  identical  with  the  question  as  discussed  at* 
common  law,  and  having  no  peculiar  relation  to  the  juris- 
diction in  specific  performance,  it  is  X)roposed  only  to  refer 
to  a  few  points  of  practical  importance  which  may  arise  in 
actions  of  this  nature. 

§  SoS.  The  peculiar  doctrines  of  equity  with  relation  to 
married  women  make  it  necessary  to  allude  to  their  capacity 
to  contract.  The  principle  on  which  the  court  proceeds  is, 
that  if  a  married  woman  have  not  separate  property,  she 
cannot,  at  any  rate  as  a  general  rule, (a)  contract  at  all;  and 
if  she  have,  she  can  contract,  but  only  in  respect  of  that, 
and  the  remedy  is  only  against  it,  and  not  in  ijersonam 
against  her. (5)  ^'■h.  feme  covert,''''  said  Lord  Cottenham,(c) 
"is  not  comi)etent  to  enter  into  contracts  so  as  to  give  a 
personal  remedy  against  her.  Although  she  may  become 
entitled  to  property  for  her  separate  use,  she  is  no  more 
capable  of  contracting  than  before ;  a  personal  contract 
would  be  within  the  incapacity  under  which  a  feme  covert 
labors.'" 

(a)  See  the  case  of  Vansittart  v.  Vansittart  v.  Ashton,  1  My.  &  Or.,  105.    See,  also,  Hum- 

(4  K.  &  J.,  62,  affirmed  2  De  G.  &  J.  249),  phreys  v.  HoUls,  Jac,  73. 
infra,  §  259.  (c)  1  My.  &  Cr.,  Ill,  112. 

(6)  Francis  V.  Wigzell,  1  Mad,  258;  Aylett 

'  Kfeine  covert  will  be  treated  as  a  feme  soU,  only  as  to  the  dispositiou  of  her 
separate  property;  and  her  power  of  disposing  of  property,  settled  to  her  sepa- 
rate use,  will  be  governed  by  a  strict  interpretation  of  the  powers  given  by  the 
settlement.  Methodist  Church  v.  Jacques,  3  John.  Ch.,  77.  And,  therefore,^ 
where  a  wife  had  poWer,  under  a  marriage  settlement,  to  "give  and  Itequcath  " 
the  property,  at  her  death,  "to  whomsoever  she  pleases."  but  had  no  separate 
estate,  and  she  executed  au  instrument  under  the  power,  therein  styled  a  "will," 
and  appointed  A.  her  "executor;"  held,  that  such  instrument  was  a  mere  exe- 
cution of  the  power,  and  that  A.  therefore  was  uot  au  executor,"  but  that  he 
was  an  appointee  in  trust,  and  that  the  property  vested  in  him  for  the  benefit 
of  creditors  and  legatees.  Leigh  v.  Smith,  3  Ired.  Ch.,  442.  But  where  a 
feme  covert  has  a  separate  estate,  she  may  dispose  of  it  as  she  pleases,  eveu  to 
her  husband,  if  done  freely  and  vohmtarily,  and  the  court  will  coutirm  her  dis- 
position. Dallam  v.  Wampole,  Pet.  C.  C',  116.  She  may  mortgage  her  sepa- 
rate estate  for  her  luisband's  debts;  and  a  power  of  sale,  in  such  mortgage, 
pursuant  to  the  statute,  is  valid.  Demarest  v.  Wynkoop,  3  John.  Ch.,  129 
(Kent,  Ch.).  A  married  woman  being,  as  to  her  separate  estate,  treated  as  a 
feme  sole,  may,  in  person,  or  by  her  agent,  bind  the  estate  for  the  payment  of 
debts  contracted  upon  the  credit  of  such  estate;  and  the  assent  of  her  trustee 
is  not  necessary,  if  the  instrument  creating  the  trust  contains  no  restriction 
upon  her  power.  North  American  Coal  Co.^  v.  Dyett.  7  Paige.  9.  And  !<liemay 
bind  her  separate  estate  for  debts  contracted  by  her,  on  the  credit  of  such 
estate,  even  though  her  husband  should  be  the  creditor.  Gardner  v.  Gardner, 
7  Paige,  113.  A.yeine  covert  is,  in  all  cases,  to  be  treated  i\saftmc»ole,  in  re- 
spcctlo  her  separate  estate,  so  far  as  to  dispose  of  it  in  any  way,  not  inconsist- 
ent with  the  terms  of  the  instrument  under  which  she  holds.     Leaycraft  v. 


126        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

^  •35:J.  If  the  contract  in  question  relate  to  the  woman's 
separate  property  not  fettered  by  a  restraint  on  anticipation, 
her  contract  with  regard  to  it  will  clearly  bind.  But  if  that 
be  not  the  case,  as,  for  example,  if  a  married  woman  agree 
to  purchase  or  lease  a  house,  then  the  mere  fact  of  her  pos- 
sessing separate  estate  is  not  sufficient  to  enable  the  other 
party  to  enforce  performance  as  against  the  separate  estate. 
The  engagement  here  will  be  of  that  description  which  has 
been  called  the  general  engagements  of  a  married  woman, 
and  in  order  to  bind  the  separate  estate  by  such  an  engage- 
ment "it  should  appear  that  the  engagement  was  made  with 

Hedden,  3  Green's  Cli.,  512.     And  if,  by  the  deed,  the  wife  is  permitted  to  dis- 
pose of  her  separate  property  by  deed,  will,  or  otherwise,  at  her  pleasure,  her 
riffhtof  disposition  remains  as  before  marriage,  in  respect  to  her  estate.     But  if 
the  terms  of  the  deed  require  a  particular  mode  of  disposition,  then,  as  clearly  those 
terms  must  be  observed,  her  power  is  limited  by  them,  and  she  is  a  feme  sole 
sv/j  fiiodo  and  only  to  the  extent  of  the  power  expressed.     Id.     The  same  doc- 
trine is  repeated  in  Clark  v.  Makenna,  1  Chev.,  163  (2d  part);  Morgan  v.  Elam, 
4  Yerir.,  375;  Yizonneau  v.  Pegram,  2  Leigh,  183;  and  Williamson  v.  Beck- 
ham, 8  id.,  20.    K  feme  covert,  with  the  consent  of  her  trustee,  may  reinvest 
her  separate  trust  property  as  she  may  think  proper.     Frazier  v.  Center,  1 
]McCord's  Ch.,  270.    Where  a  married  woman,  by  a  contract  under  seal,  charged 
the  payment  of  a  debt  on  her  real  estate,  which  was  settled  on  her  by  a  deed  of 
trust,  with  a  power  to  sell  and  convey,  and  absolutely  dispose  of  the  same  by 
deed,  her  coverture  notwithstanding,  it  was  held  that  a  court  of  equity  would 
enforce  such  a  contract,  and  decree'a  sale  of  the  land  to  pay  such  charge,  and 
that  the  power  given  her  to  sell,  necessarily,  included  the  power  to  incumber  it 
by  mortgage,  or  charge  it  by  contract.     "Price  v.  Bigham,  7  Har.  &  J.,  296. 
The  separate  property  of  a  feme  covert  was  sold  on  execution  against  such  prop- 
erty as  had  come  to  her  by  descent  or  devise  from  the  debtor,  and  the  husband 
received  the  surplus  proceeds  of  the  sale,  and  died.     Held,  that  the  wife  was 
not  bound  by  the  act  of  her  husband,  and  that— the  money  not  havmg  been 
applied  to  the  benefit  of  her  separate  estate— she  was  not  l)ound  to  refund  it  on 
the  reversal  of  the  judgment,  and  the  recovery  of  the  land  by  her.     Wood  v. 
Genet,  8  Paige,  137.     Where  a  husband  purchases  real  estate,  in  his  own  name, 
with  hie  money  of  the  wife,  a  purchaser,  with  notice  of  these  facts,  will  be 
held  to  be  a  trustee  for  the  wife.     Methodist  Church  v.  Jacques,  1  John.  Ch., 
450.     The  wife's  equity  in  her  separate  personal  or  real  estate,  devised  or  de- 
scended to  her  during  coverture,  may,  in  a  proper  case,  extend  to  the  whole 
estate;  and  it  cannot  lie  defeated  by  any  act  of  the  husband.     Havilaud  v. 
Bloom,  6  John.  Ch.,  178.     Kfeme  (^rernnay  become  the  debtor  of  her  hus- 
band, by  borrowing  money  of  him,  for  the  benefit  of  her  separate  estate.     Gard- 
ner v.  Gardner,  22"Wend.,  52r..     But  though  her  estate  may  become  liable,  ia 
equity,  for  debts  contracted  in  reference  to  such  estate;  yet,  in  order  that  it 
shall  be  bound,  it  must  distinctly  appear  that  the  dealings  were  bona  fide  with 
her,  and  that  goods  were  delivered,  or  the  money  paid,  to  her  own  order,  or 
into  her  hands.     Magwood  v.  Johnson,  1  Hill  Ch.,  228.     And  the  separate- 
property  of  a  wife,  settled  upon  her  at  her  marriage,  is  not  primarily  liable  for 
her  debts  contracted  before  marriage.   Knox  v.  Picket,  4  Des.,  92;  See  McKay 
V.  Allen,  6  Y^erg.,  44.     The  wife  of  a  person  perpetually  banished,  is,  for  the- 
purpose  of  contracting  or  maintaining  suits,  to  be  treated   as  a  feme  sole. 
Troughton  v.  Hill,  2  Hay w. ,  406.     See.  further,  as  to  the  separate  property  of 
&  ferae  covert,  the  cases  of  Brundige  v.  Poor,  2  Gill.  &  J.,  1;  Tiernan  v.  Poor,  1 
id. ,  216.     The  rights  of  married  woman  under  the  laws  of  New  York  are  well 
digested  in  The  Saratoga  Co.  Bk.  v.  Pruyn,  90  N.  Y.,  250. 


IFCAPACITY  TO  CONTRACT.  127 

reference  to  and  upon  the  faith  or  credit  of  that  estate,"' 
and  "whether  it  was  so  or  not  is  a  question  to  be  judged 
of    *    "^    *    upon  all  the  circumstances  of  the  case."  (<rZ) 

§  254.  In  one  case,  a  married  woman  possessed  of  sepa- 
rate estate,  and  living  separate  from  her  husband,  verbally 
contracted  to  tal^e  a  leasehold  house  for  a  term.(e)  The 
contract  was  reduced  into  writing,  signed  by  the  lessor  s 
agent,  and  handed  to  the  married  woman ;  she  retained  it, 
without  executing  it,  or  any  counterpart  of  it,  but  in  let- 
ters written  by  her  referred  to  it  as  a  contract,  and  she  en- 
tered into  possession.  In  a  suit  by  the  lessor  against  her 
and  her  trustees  to  enf^rce  payment  of  rent,  as  a  charge 
on  her  separate  estate.  Knight  Bruce,  A^.  C  ,  held  that  she 
would  have  been  bound,  if  she  had  been  a  feme  sole,  and 
that,  being  married,  she  was  bound  to  the  extent  of  her 
separate  estate. 

§  ^99.  As  regards  separate  property  settled  to  the  use  of 
a  married  Avoman  without  power  of  anticipation,  she  has 
no  power  to  contract  so  as  to  bind  such  property.  (/) 

§  256.  If  a  married  woman  have  a  power  to  be  exercised 
in  a  specific  way,  and  she  affect  to  contract  by  an  exercise 
of  the  power,  but  without  the  essential  formalities  required, 
there  will  be  no  judgment  against  her  ;  for,  except  under 
these  formalities,  she  has  no  power  to  contract,  and  the 
paper  signed  by  her  is  as  void  as  any  other  contract  signed 
by  a  married  woman,  {g)  But  where  the  formalities  omitted 
are  immaterial  for  the  protection  of  the  married  woman,  her 
estate  may  be  bound  by  the  exercise  of  the  power,  and  the 
contract  constituted  by  such  exercise  may  be  specifically 
enforced.  (7z.) 

§  257.  In  actions  for  the  enforcement  of  contracts  against 
the  separate  estates  of  married  women,  the  usual  and  proper 
parties  are  the  woman  herself,  her  husband  (i)  and  the  trus- 
tees (if  any)  of  the  separate  property,  (i)  The  trustees  are 
not  always  necessary  parties ;  {k)  but  in  their  absence  the 

id)  Johnson  V.  Gallagher.  3  De  G.  F  &  J.,  r,  Dew.  i  Y    &  C    C    C..  ff!  Thackwei^v 

494.515;   London  Chartered  Bank  of  Aus-  Gardiner.  5  De  G.&  bm.,  5h,  Phillips  v.  iid- 

tra  ia  V.  Lempriere.  L.  R.  4  P.  C,  572     See,  wards.  33  beav..44(- 

too,  Picard  V    Hine.ld.  5Ch.,274,  and  per  W  Hancocks  v    Lablache,  3  C.  P.  D..  19-. 

Jes8el,M.R..inWainfordv.Heyl,id.20Eq..  Cf-^O^^.^X^Jj -/^^  Tenant.  1  Bro.  C  C,  16; 

(h  Gaston  v  Frankum,  2  De  G.  &  Sm.,  561.  Murray  v.  Barlee.  3  My.  &  1^-.  209._      _^^.  ^ 

&)  Walrond  V.  Walrond,  John.,  18.  (k)  Picard  vHine,  L  R.  5  Ch.,  2.4 ,  Davles 

Yq)  Martin  v.  Mitchell,  2  J.  &  W  ,  413,  434.  T.  Jenkins,  6  Ch.  D.,  <28. 
(A)  Hopkins  V.  Myall,  2  R.  &  M.,  86;  Dowell 


128         FRY  OX  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

plaintiff  may  find  it  impracticable  to  obtain  complete  re- 
lief. (/) 

§  5858.  As  regards  the  real  estate  of  a  married  woman 
not  settled  to  her  separate  use  or  subject  to  her  power,  she 
may,  under  the  act  for  the  abolition  of  fines  and  recov- 
eries, (m)  not  only  dispose  of  the  land,  but  contract  respect- 
ing it,  if  not  so  as  to  render  herself  liable  to  damages,  yet 
so  as  to  bind  her  estate  of  inheritance. (7z)  The  only  other 
modes  by  which  a  married  woman  can  bind  such  real  estate 
(including,  it  would  seem,  her  share  in  the  proceeds  of  land 
vested  in  a  trustee  and  directed  to  be  sold(o),  are  by  fraud 
or  by  election,  or,  perhaps,  sometimes  by  agreement  with 
her  husband  when  dealing  with  him  at  arm's  length. (^)' 

§  S59.  As  regards  dealing  between  a  husband  ji.nd  wife, 
Lord  Hatherley,  when  a  vice-chancellor,  in  more  than  one 
case  intimated  his  opinion  that  the  power  of  a  wife  to 
contract  with  her  husband  is  not  confined  to  her  separate 
property,  but  that  "under  any  circumstances,  when  the 
wife  is  put  in  such  a  position  that  she  can  be  regarded  for 
the  purposes  of  the  contract  as  a /erne  5oZe,"  she  may  so 
contract. ('7)  The  learned  Judge  considered  that  the  case  of 
Bateman  v.  Countess  of  Ross,(r)  supports  this  proposition. 
The  last-mentioned  case  is  not  very  fully  reported  ;  and  it 

(/)  Collett  V.  Dickenson,  11  Ch.  D.,  687;  192,  particularly  212,  219,  overruling  S.  C.,2 

Flower  V.  Buller,  15  id.,  674      As  to  actions  K.  &  J.,  194. 

by    married    women    respecting     separate  (o)  Franks  v.  TJollans,  L.  R.  3  Ch.,  717.    An 

estate,  see  the  Married  Women's  Property  appeal  to  the  House  of  Lords  appears  to  have 

Act,  1870,  §  11 ;  per  Jessel,  M.  B  ,  in  Howard  been  compromised,  L.  R.  13  Eq.,  301. 

V.  Bank  of  England,  L.  R  19  Eq.,30):  Roberts  (p)  Nicholl  v.  .Jones,  I..  R.  3  Eg.,  696 

V.  Evans,  7  Oh  D.,830;  and  Ord.  XVI,  r.  8.  (?)  Vansittart  v.  Vansittart,  4  K.  &  .1.,  62, 

(m)  3  and  4  Will.  IV,  ch.  74.    Of.  Toler  v.  70(8.  C,  on  appeal,  2  DeG  &  J.,249);  Nicholl 

Slater,  L.  R.  3  Q.  B.,  42.  v.  Jones,  L  R.  3  Eq.,  096;  Gibbs  v.  Harding, 

(n)  Crofts  V.  Miadleton,  8  De  G.  M.  &  G.,  Id.  5  Ch.,  336. 

(r)  1  Dow,  235. 

•  W/ie?'«  the  wife  refuses  to  unite  in  the  conveyance.]  In  a  case  wliere  the  wife 
does  not  join  the  deed,  and  does  not,  in  any  other  manner,  release  her  dower 
right — held,  that  the  measure  of  damages  is  the  difference,  if  there  be  any,  be- 
tween the  contract  price  and  the  proved  value  of  the  property  at  the  time  of 
the  breach.  Bush  v.  Cole,  28  N.  Y.,  261;  Pumpelly  v.  Phelps,  40  id.,  59; 
Heimburgh  v.  Ismay,  35  N.  Y.  Supr.  Ct,,  35. 

Rule  for  computing  the  present  value  of  wife's  dower  right.']  "The  proper  rule 
for  computing  the  present  value  of  the  wife's  contingent  right  of  dower  during 
the  life  of  the  husband,  is  to  ascertain  the  present  value  of  an  annuity  for  her 
life,  equal  to  the  interest  in  the  third  of  the  proceeds  of  the  estate  to  which 
her  contingent  right  of  dower  attaches,  and  then  to  deduct  from  the  present 
value  of  tiie  annuity  for  her  life,  the  value  of  a  similar  annuit}'  depending  upon 
the  joint  lives  of  herself  and  her  husband;  and  the  difference  between  these 
two  sums  will  be  the  present  value  of  her  contingent  right  of  dower."  Wal- 
worth, Ch.,  in  Jackson  v.  Edwards,  7  Paige,  Ch.,  408;  see,  also,  Troutman  v. 
Gouring,  16  Iowa,  415;  Hazebig  v.  Hutson,  18  Ind.,  481. 


INCAPACITY  TO  CONTRACT.  129 

is  believed  that  with  that  single  exception  there  is  no  re- 
ported case  in  which  the  exception  stated  by  Lord  Hather- 
ley  has  ever  been  acted  upon  ;  the  extent  to  which  it  is  to 
be  carried  seems  to  require  ample  consideration. 

§  360.  Where  a  married  woman  is  a  trustee  (or  one  of 
several  trustees)  for  sale,  she  cannot  by  contract  bind  herself 
to  convey  the  estate.  (5) 

§361.  Lunatics  are  under  an  incapacity  to  contract, 
except  during  lucid  intervals,  during  which  times  contracts 
entered  into  by  them  are  as  binding  as  if  made  by  a  person 
of  perfectly  sound  mind.(/^)'  Where  a  person,  who  has 
entered  into  a  contract  is  subsequently  found  lunatic  from 
a  date  prior  to  the  contract,  it  is  competent  for  the  other 
party  to  bring  his  action  for  specific  performance,  and  obtain 
a  decision  of  the  questions  w^hether  the  defefidant  was  a 
lunatic  at  the  time  of  the  contract,  and,  if  so,  whether  he 
had  lucid  intervals,  and  whether  the  contract  was  executed 
during  a  lucid  interval  \{u)  or  he  may  ask,  in  the  alterna- 

(,<f)  ^ve^y  V.  Griffin,  L.  R.  6  Eq.,  606.  cb.  14;  Riicknlll  and  Tuke's  Psychological 

(t)  Hall  V.  Warren,  9  Vep.,  605     As  to  the  Medicine  (3d  ed.),  27,  where  many  authoritU  s 

evidence  required  to  prove  a  lucid  interval,  are  cited. 

see  Alt. -Gen.  v.  Parnth^r,  3  Bro.  C.  C,  441;  (m)  Hall  v.  Wr.rren.  9  Ves..  6^5;  Jud.  Act, 

ex  parte  Holyland,  11  Ves.,  10     See,  also,  1873,  §29;  Orders  XXVI,  XXXVI. 

Ray's  Medical  Jurispiudence  and  Insanity, 

'  Therefore,  whore  a  person  subject  to  temporary  insanity,  in  a  hicid  interval 
sold  property  for  a  full  price,  for  the  payment  of  urgent  debts,  his  friends  ad- 
vising and  consenting  to  the  sale,  it  was  held  tliat  such  sale  should  not  be  set 
aside.  Jones  v.  Perkins,  5  B.  Monr.,  222.  A  deed  by  a  lunatic  is  voidable,  and 
not  void.  Breckenridge  v.  Ormsby,  1  J.  J.  Marsh..  23fi.  And  where  a  person 
has  contracted  with  a  lunatic  in  good  faith,  and  without  notice  of  the  lunacy, 
equity  will  not  rescind  the  contract,  restoring  to  such  person  the  benefit  derived 
from  the  contract  by  the  lunatic's  estate.  Carr  v.  Halliday,  1  Dev.  &  Bat.  Ch., 
344.  It  is  said,  in  Breckenridge  v.  Ormsby,  supra,  that  although  a  lunatic 
may  not  be  permitted  to  disaffirm  a  deed  made  by  him  under  mental  disability, 
yet  the  purchaser  from  the  lunatic  vendor,  after  his  recovery  of  sanity,  will 
have  as  much  right  to  avoid  the  first  deed  as  the  vendor  or  his  heir  had.  In 
Gates  V.  Woodson,  2  Dana,  452,  where  a  lunatic  conveyed  a  lot  of  land  to  A., 
and  afterwards,  when  sane,  conveyed  the  same  to  anotlier  person,  it  was  held 
that  although  the  fiist  deed  was  not  absolutely  void,  yet  the  second  grantee 
might  avoid  it.  Among  those  who  are  incapacitated  to  contract  are  habitual 
drunkards.  They  are,  during  their  intoxication,  considered  as  lunatics.  But 
their  drunkenness  must  be  so  complete  as  to  deprive  them  of  the  proper  exer- 
cise of  their  minds,  and  thus  withhold  the  unqualified  and  perfect  assent  which 
equity  requires  for  the  validity  of  a  contract.  See  Harrison  v.  Lemon,  2  Blackf., 
51.  So  in  Belcher  v.  Belcher,  10  Yerg.,  121,  the  fact  that  the  party  was  intoxi- 
cated when  he  executed  the  convej^ance,  no  undue  advantage  being  taken  of 
his  situation,  and  it  appearing  that  he  was  capable  of  transacting  business  at  the 
time,  was  thought  to  constitute  insufficient  grounds  for  setting  aside  the  sale. 
And  in  Harrison  v.  Lemon,  supra,  it  is  added  that  un-less  it  appears  that  there 
was  unfairness  in  the  transaction,  or  that  the  drunkenness  was  produced  by 
the  procurement  of  the  grantee,  the  court  will  not,  upon  the  opinion  of  one 
witness  that  the  grantor  was  incapacitated  by  drunkenness  for  negotiating, 
avoid  his  deed. 
9 


130        FRY  ON  SPECIFIC  PEKFORMANCE  OF  CONTRACTS. 

tive,  to  have  the  contract  either  performed  or  discharged ; 
and  in  the  hitter  case  the  court  Avill  allow  hira,  if  vendor,  to 
retain  out  of  the  deposit  his  costs,  charges  and  expenses. (?)) 
In  judging  of  insanity,  courts  of  equity  are  governed  by  the 
same  principles  as  i)urely  common  law  courts. (w)) 

§  a^a.  The  subsequent  lunacy  of  a  party  to  a  contract  in 
nowise  affects  the  rights  of  the  other  parties  ^{x)  and  the 
difficulties  which  formerly  stood  in  the  way  of  their  remedies 
were  removed  by  the  trustee  acts  of  1850  and  1852,  and  the 
lunacy  regulation  act,  1853,  §  122. (y) 

§  363.  In  addition  to  the  legal  incapacities  to  contract, 
courts  of  equity  consider  trustees,  guardians,  agents,  and 
other  persons  standing  in  a  confidential  relation  to  others  to 
be  incapable  (either  absolutely  or  except  under  certain  re- 
strictions) of  contracting  for  the  purchase  of  the  projDcrty 
entrusted  to  them  in  behaK  of  the  persons  to  whom  they 
stand  thus  confidentially  related,  and,  under  many  circum- 
stances, of  contracting  with  such  persons  ;{z)  and  this  inca- 
pacity may,  of  course,  be  urged  in  an  action  for  specific 
performance.  But  inasmuch  as  it  depends  on  the  general 
doctrines  of  the  court  with  regard  to  each  of  these  particular 
relations — and  questions  of  this  sort  are  more  often  agitated 
in  actions  to  set  aside  the  impugned  transaction,  than  in  pro- 
ceedings for  specific  performance — it  does  not  appear  neces- 
sary to  do  more  here  than  allude  to  the  subject  generally,  (a) 

(v)  Frost  V.  Beavan,  17  Jur.,  369.    As  to       (x)  Owen  v  Davies,  1  Ves.  Sen.,  82. 
setting  aside  a  contract  for  the  lunacy  of  a       (y)  See  Seton,  517  ct  seq. 
party,  see  Neill  v.  Morley,  9  Ves.,  478.  (s)  See  Flanagan  v.  Great  Western  Railway 

(iv)  Per   Lord   Hardwicke   in    Bennet  v.  Co.,  L.  B.  7  Eq.,  116. 
Vade,  2  Atk.,  3-27;  Osmond  v.  Fitzroy,  3  P.        (a)  As  to  infancy,  see  infra,  §  441. 
Wms.,  129.    See  infra,  §  380. 


ISTON-COlSrCLUSIOlS"   OF  THE   CONTRACT.  131 


CHAPTER  II. 

OF   THE   NOISr- CONCLUSION   OF    THE   CONTRACT. 

§  964.  No  proceedings  in  specific  performance  can,  of 
course,  be  had  unless  a  contract  lias  actually  been  con- 
cluded, i.  e.,  unless  two  persons  have  agreed  on  the  same 
terms,  and  mutually  signified  their  assent  to  them.  If  what 
passed  between  them  was  but  treaty  or  negotiation,  or  an 
expectation  of  contract,  or  an  arrangement  between  them  of 
an  honorary  nature,  no  specific  performance  can  be  had.* 

§  965.  The  burden  of  proving  this  concluded  contract  is, 
•of  course,  on  the  plaintifi: ;  and  it  must  be  considered  quite 
indei)endently  of  the  evidence  of  the  contract  (whether  as 
affected  by  statute  law  or  otherwise,  (a)  It  must  be  admit- 
ted that  the  question  of  the  existence  of  the  contract  and  of 
its  evidence  are  often  mingled  in  discussion ;  but  they 
should  be  kei^t  sei)arate  in  thought. 

§  966.  Wliere  there  is  nothing  to  throw  light  upon  the 
existence  or  non-existence  of  a  contract  but  some  instrument 
or  instruments,  the  question  is  really  one  of  construction  of 
the  documents  in  question. 

§  967.  Where  the  contract  is  embodied  in  a  formal  docu- 
ment simultaneously  entered  into  by  both  parties,  and  pur- 
porting to  be  a  contract,  little  difficulty  can  occur  as  to 
whether  the  contract  was  concluded.  But  where  this  is  not 
the  case  questions  have  arisen. 

§  968.  One  question  has  been  whether  the  instrument  in 
.question  was  the  embodiment  of  a  contract  or  of  some  other 
transaction. 

(1)  Is  a  judge's  order  made  by  consent,  and  directing  cer- 
tain things  to  be  done  by  the  parties  to  it,  a  contract  to  do 
the  things  ?     It  has  been  said  not  to  be  by  Lord  Hatherley 

'  (a)  Rossiter  v.  MiUer,  3  App.  C,  1124, 1151;  Chinnock  v.  Marchioness  of  Ely,  4  De  G.  J. 
AS.,  638. 

>  Or  if  a  contract  be  formal   and  complete,  yet,  i*"  understood  by  the  parties 
:as  a  jest,  it  is  nat  binding.     Armstrong  v.  McGhee,  Addis,  261. 


132        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

(wlien  a  vice  chancellor),  who,  both  on  that  ground  and  on 
the  nature  of  the  judge's  order,  refused  specific  perform- 
ance. (^/)  Tlie  opposite  view  has  been  taken  in  some  cases 
at  common  law,  and  it  has  been  said  that  a  contract  is  not 
tlie  less  a  contract,  and  subject  to  the  incidents  of  a  contract, 
because  there  is  superadded  the  command  of  a  judge. (f)' 

(2)  Are  instructions  for  a  settlement  a  contract  for  a  set- 
tlement, or  only  instructions  for  a  contract?  This  was  a 
question  on  which  the  House  of  Lords  was  in  one  case  much 
divided,  (t?) 

(3)  Are  articles  of  association  a  contract  between  the  com- 
pany and  a  third  person  named  in  them  ?  This  is  a  question 
which,  under  special  circumstances,  has  been  answered  in 
the  affirmative. (f) 

(4)  Is  the  recital  in  a  deed  evidence  of  a  contract  ? — is  a 
question  which  also  has  been  answered  in  the  affirmative.  (/) 

§  269.  A  much  more  common  question  is  whether  negoti- 
ations have  passed  from  that  state  and  resulted  in  actual 
contract.'  If  it  were  only  doubtful  whether  the  contract 
was  concluded  or  negotiations  still  remained  open,  the  court 
of  chancery  used  to  refuse  specific  performance,  and  leave 
the  parties  to  their  common  law  rights  if  any. {r/Y 

§  270.  A  binding  contract,  enforceable  in  equity,  may  be 
constituted  by  the  proposal  of  one  party  and  the  acceptance 
of  the  other. (A)     But  as  the  prox)osal  has  no  validity  with- 

(6)  Thames  Ironworks  Co.  v.  Patent  Der-  (/)  Wilson  v.  Keating,  27  Beav.,  121;  afTd 

rick  Co. ,1. J   &H,  93.  4DeG.  &J.,5S8 

(C)  Wentworth  v.  Biillen.  9  B.  &  C,  840;  ig)  Huddleston  v.  Bus-cop.  ll  Vee  ,  583.591; 

Llevesley  V.  Gilniore,  L.  R.  IC.  P.,570.    See,  Stratford  v.  Bosworth,  2  V.  &  B,  341 ;  Skelton 

also,  Tatham  v.  Piatt,  9  Ha.,  660.  v.  Cole,  1  De  G.  &  .J.,  S87. 

(d)  Caton  V.  Caton,  L.  R  2  H.  T-.,  127.  {h)  The  acceptance  must  be  by  the  other 

(()  Touche  V.  Metropolitan  Railway  Ware-  party.    An  offer  by  A.  to  B.  and  acceptance 

housing  Co.,  L.  R.  6Ch.,671.  by  (5.  constitutes  no  contract.     Meynell  v. 

buriees,  3  Sm.  &  Gil'.,  101, 117. 

'  A  party  wrote  to  the  owner  of  land  inquiring  the  price.  Held,  that  the 
reply  of  the  latter  stating  the  price,  does  not  constitute  a  proposition  to  sell. 
Knight  V.  Cooley,  34  Iowa,  218;  Erwin  v.  Erwin,  25  Ala.,  23(5.  Construction 
of  the  word  immediately.     Bruuer  v.  Wheaton,  40  Mo.,  863. 

Itnle  as  to  ncaiptance  of  terms.'\  In  order  that  an  acceptance  may  be  binding, 
it  must  l)e  distindt,  unconditional ;  it  must  not  vary  the  terms  of  the  offer,  and 
it  mu.st  be  communicated  without  unreasonable  delay.  Thomburry  v.  Bevill. 
1  Y.  ct  C.  C.  C,  554;  Eads  v  Caroudolet,  42  ]\Io.,  113;  Bruner  v.  Wheaton,  46 
id.,  863;  Bethel  v.  Hawkins,  21  La.  An.,  620;  Wilson  v.  Clements,  3  Mass.,  1; 
Peru  V.  Tvu'ner,  10  Me.,  185;  Johnson  v.  Fisher,  7  Watts,  48;  Hazard  v.  New 
England  :\Iar.  Ins.  Co.,  1  Sumn.,  218;  Carr  v.  Duval,  14  Pet.,  77;  Hartford  and 
New  Haven  K.  R.  Co.  v.  .Tackson,  24  Conn.,  514;  Solomon  v.  Webster,  4  Col- 
orado, 353;  Carter  v.  Shorter,  37  Ala.,  253. 

'  Carr  v.  Duval,  14  Pet.,  77. 


NON-CONCLUSION    OF   THE   CONTRACT.  133 

out  the  acceptance,  a  memorandum  of  offer  differs  essenti- 
ally from  a  memorandum  of  agreement.  "  In  the  case  of  an 
offer,  no  doubt,  the  party  signing  it  may  at  any  time  before 
acceptance  retract ;  but  if  it  be  an  agreement,  thougli  signed 
by  one  party  alone,  he  cannot  retract  at  his  pleasure,  but 
all  he  can  do  is  to  call  upon  the  other  party  to  sign  or  re- 
scind the  agreement.  A  memorandum  of  agreement  sup- 
poses that  the  two  parties  have  verbally  made  an  actual 
contract  with  each  other ;  and  when  the  terms  of  such  con- 
tract are  reduced  into  writing  and  signed,  that  is  sufficient 
to  bind  the  party  signing ;  but  if  the  memorandum  is  of  an 
offer  only,  that  assumes  that  there  has  been  no  actual  con- 
tract between  the  parties."  ' 

§  271.  In  order  that  an  acceptance  may  be  operative,  it 
must  be  plain,  unequivocal,  unconditional  and  without  vari- 
ance of  any  sort  between  it  and  the  proposal,  and  it  must 
be  communicated  to  the  other  party,  and  that  without  un- 
reasonable delay,  (y) 

§  373.  The  proposition  that  the  acceptance  must  be  plain, 
unequivocal,  unconditional  and  without  variance,  is  sup- 
ported and  illustrated  by  a  great  variety  of  decisions.  In 
tlie  case  of  Kennedy  v.  Lee,(/t)  the  subject  was  much  dis- 
cussed ;  it  was  there  unsuccessfully  argued  that  the  accept- 
ance introduced  a  term  respecting  the  good-will  of  a  busi- 
ness not  included  in  the  proposal. 

§  273.  The  unequivocal  character  of  the  acceptance  that 
is  requisite  is  well  illustrated  by  a  case  in  which  A.  made  an 

(i)  PerKindersley,  V.  C.in  Warner  v.  'Vil-  thier,  Tiaite  fles  Oblig.,  parti,  cli.  1,  s.  l.art 

lington,  3  Drew  ,  531.    See,  also,  M^vnell  v.  ],§2. 

Surtt^es  (on  appeal),  1  .hir.  (X    s),  737;  3  W  (j<  Oiieiital  rnliiTl  Steam  Navijrfitinn  Co. 

R.,  535;  Horstall  v.  G;iriiett,  6  1<1.,  387.     The  (liM.it.eji')  v    KriiC^^s,  4  De  G.  F.  &  I.,  191 

distinction  is  the  same  b  tween  a.  p'AlicHiiUn  {!;)  3  Mer  ,  441      Si^e,   too,  'I'tiornhury  v. 

and  a  contract  in  the  Koinan  law.    See  Po-  P>evill,  1  V.  &  C    U.  C  ,  554;  Cayley  v.  Wal- 

pole,  18  VV.  H,78-2. 

'  In  the  case  of  the  Canal  Co.  v.  Railroad  Co.,  4  Gill  ct  .J.,  1,  a  contract, 
valid  and  binding  at  law,  is  defined  to  be  a  mutual  consent  of  the  parties  con- 
cerned, respecting  some  property  or  right  that  is  the  object  of  the  stipulation, 
or  something  that  is  to  Ije  done  or  forborne;  a  transaction  between  two  or  more 
persons,  in  which  each  party  comes  under  an  obligation  to  thfe  other,  and  each 
reciprocally  acquires  a  right  to  whatever  is  promised  or  disputed  by  tlie  other; 
and  any  words  manifesting  a  eongregatio  mentiani,  are  sutlicient  to  constitute  a 
contract.  But  this  mutual  consent — the  congregatio  mentium — cannot,  of  course, 
be  attained  without  the  assent  of  both  parties.  Therefore,  if  A.  sign  a  writing 
that  he  will  sell  B.  a  house  on  certain  terms,  it  is  a  mere  proposition,  and  not 
an  agreement,  unless  accepted  by  B.  Tucker  v.  Wood,  12  John.,  170.  Nor  is 
a  paper.  Hied  in  a  cause  by  one  party,  offering  to  be  bound  b}*  certain  terms,  if 
the  verdict  should  be  in  his  favor,  but  not  accepted  by  the  other  party,  binding 
on  the  party  who  filed  it.     Bower  v.  Blessing,  1  S.  &  R.,  243. 


134         FHY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

oifer  to  B.,  by  letter,  to  sell  a  lot  of  land;  B.  filed  a  bill 
against  A.,  alle.rrinn;  a  contract  in  writing  for  the  sale  of  this 
estate,  and  the  answer  offered  to  sell  the  estate  ;  the  decree 
was  in  the  alternative  for  a  conveyance  on  the  payment  of 
the  purchase  money  into  the  bank,  or  in  default  for  the  dis- 
Miissal  of  the  bill ;  the  money  was  paid.  The  question  arose 
between  the  heirs  and  devisees  of  B.  as  to  the  time  when 
the  contract  became  binding ;  it  was  held  that  the  bill  did 
not  amount  to  an  acceptance  so  as  to  bind  B. ;  for  he  as 
l)laintill"  might  have  dismissed  his  bill ;  the  decree  did  not, 
for  it  left  an  election  to  the  plaintiff ;  but  the  payment  of 
the  money  into  the  bank  did,  for  that  was  unequivocal.  (Z) 
In  another  case,  where  the  plaintiff  had  made  an  offer  to 
take  a  farm,  and  had  referred  to  certain  persons  as  to  his 
capabilities  and  capital,  and  in  consequence  of  this  offer  the 
agents  of  the  proposed  lessor  had,  by  his  direction,  prepared 
and  sent  to  the  proposed  lessee  a  lease  which  they  consid- 
ered to  be  in  pursuance  of  the  proposal ;  Kindersley,  V.  C, 
held  this  not  to  be  an  acceptance,  (m)  on  the  ground  that 
the  act  Avas  ambiguous  and  conditional — ambiguous,  be- 
cause the  lease  might  have  been  sent  in  order  to  save  time, 
and  without  any  intention  of  departing  from  the  right  of 
accepting  or  refusing  the  offer  of  the  plaintiff,  according  to 
the  result  of  his  communication  with  the  referees  ;  and  con- 
ditional, because  the  sending  the  draft  lease,  if  an  accept- 
ance at  all,  was  an  acceptance  upon  condition  that  the 
defendant  accepted  the  draft  lease.  The  case  of  Thomas  v. 
Blackman,(7^)  before  Knight  Bruce,  Y.  C,  may  also  be  re- 
ferred to  as  illustrating  this  doctrine.  Here  there  had  been 
a  long  correspondence,  and  the  vice  chancellor  held  that 
there  never  had  been,  in  any  part  of  it,  a  clear  accession  on 
both  sides  to  one  and  the  same  set  of  terms ;  and  accord- 
ingly he  decreed  the  dismissal  of  the  bill,  unless  the  plain- 
tiff accepted  the  terms  of  the  defendant's  original  offer, 
which  the  jjlaintiff  acceded  to.' 

{D   Gaskarth  v.  Lord  I.owther,  12  Ves.,  107.     Cf.  Horsfall  v.  Garnett,  6  W.  R.,  387. 
(tn  Warner  v.  Willington,  3  Drew.,  523.        (n)  1  <  oil.,  301. 

'  The  assent  must  be  to  the  same  subject  matter,  aud  in  the  same  sense  that 
is  offercfl.  Hazard  v.  New  England  Mar.  Ins.  Co.,  1  Sumner,  218.  And  the 
proposition  must  be  accepted  according  to  its  terms;  any  qualification  of,  or 
departure  from,  them  iuvalidates  the  offer,  unless  afterwards  agreed  to  by  the 
person  making  it.     Carr  v.  Duval,  14  Pet.,  77.     Thus  in  Peltier  v.  Collins,  3 


NON-CONCLUSION    OF   THE   CONTKACT.  135 

§  274.  In  illustration  of  the  unconditional  nature  of  the 
acceptance  required,  the  case  of  Crossley  v.  May  cock  (o) 
may  be  referred  to.  There  vendors  wrote,  in  answer  to  an 
offer,  "  which  offer  we  accept,  and  now  hand  you  two  copies 
of  conditions  of  sale,"  and  inclosed  a  form  of  contract  con- 

(o)  L.  R.  18  Eq.,  180.    See,  too,  Lewis  v.  Brass,  2G  W.  R.,  152. 

Wend.,  459,  it  is  said  that  there  is  no  contract,  if  there  be  a  material  difl'erence 
between  the  note  of  the  bargain  delivered  by  a  broker  to  a  vendee  and  that  de- 
livered to  the  vendor.  In  Corning  v.  Colt,  5  Wend.,  253,  where  manufacturers 
in  the  country  sent  an  order  to  merchants  in  the  city  for  a  quantity  of  plough 
castings,  to  he  forwarded  by  canal,  only  a  part  of  which  were  forwarded,  and 
those  by  land  carriage,  by  means  whereof  the  expense  of  transportation  was 
increased;  it  was  held,  in  an  action  for  the  price  of  the  property  forwarded, 
that  the  jjlaintifls  were  not  entitled  to  recover  without  showing  an  acceptance 
of  the  goods  by  the  defendants  It  is  said  in  Firth  v.  Lawrence,  1  Paige,  434, 
that  a  conditional  acceptance  of  an  offer  by  letter,  never  assented  to  by  the 
party  making  the  offer,  is  not  binding  upon  either  party ;  and  the  party  having 
once  declined  the  offer  as  proposed,  cannot,  by  any  subsequent  assent,  ratify 
sifch  original  offer.  The  rigidity  of  the  rule  was  displayed  in  the  case  of  Elia- 
son  V.  Henshaw,  4  Wheat.,  235.  In  this  case  A.  offered  to  purchase  of  B.  two 
or  three  hundred  barrels  of  flour,  to  be  delivered  at  Georgetown  by  the  first 
water,  and  to  pay  for  the  same  a  stated  price;  and,  to  the  letter  containing  the 
offer,  required  an  answer  by  the  return  of  the  wagon  by  which  the  letter  was 
sent.  This  wagon  was  at  the  time  in  the  service  of  B.,  and  employed  by  him 
in  conveying  flour  from  his  mill  to  Harper's  Ferry,  near  which  place  A.  then 
was.  His  offer  was  accepted  by  B  in  a  letter  sent  by  the  first  regular  mail  to 
Georgetown,  and  reeeimd  by  A.  at  that  place  ;  but  no  answer  was  sent  to  Har- 
per's Ferry.  Held,  that  this  acceptance,  communicated  at  a  place  dilferent 
from  that  indicated  by  A.,  imposed  no  obligation  binding  upon  him.  See  Glay- 
maker  v.  Sawin,  4  Whart.,  36t).  The  principle  upon  which  these  cases  proceed 
is,  that  no  person  shall  be  held  upon  the  terms  of  a  contract  which  he  has  never 
made,  nor  even  intended  to  impose  upon  himself.  And  therefore  if  one  party 
does  not  accede  to  a  promise  as  made,  the  other  party  is  not  bound  by  it.  Tut- 
tle  V.  Love,  7  John.,  470;  Bruce  v.  Pearson,  3  id.,  534.  And  where  R.  agreed 
to  pay  for  a  quantity  of  hay,  provided  L.  should  pronounce  it  merchantable, 
and  L.  pronounced  it  "a  fair  lot,  say  merchantable,  not  (piite  so  good  as  I  ex- 
pected; the  outside  of  bundles  somewhat  damaged  by  the  weather."  Held, 
that  R.  was  not  bound.  Crane  v.  Roberts,  5  Greenl  ,419.  Where  a  contract 
is  made  by  a  broker,  and  no  sale-note  is  delivered,  and  the  entry  by  him  made 
in  his  sale-book  varies  from  the  contract  as  actually  concluded,  neither  party  is 
bound,  inasmuch  as  no  note  or  memorandum  of  the  contract  has  been  reduced 
to  writing.  Thus,  when  a  contract  is  made  for  a  quantity  of  iron  expected 
from  abroad,  and  the  puichaser  stipulates  for  siv  vion.tJi.s  credit,  and  ior  tiie  ar- 
rival of  the  iron  in  a  reasonable  time,  and  the  broker  omits  to  make  an  entry  of 
those  conditions,  the  vendors  are  not  bound,  although  the  conditions  primarily 
were  for  tlie  benefit  of  the  purchaser,  and  he  elects  to  waive  them.  l^:^y.'«  v. 
Shields  26  Wend.,  841;  see  Hutchinson  v.  Boker,  5  M.  >k  W  .  535;  Brodie  v. 
St.  Paul,  1  Ves. ,  82« ;  Gordon  v.  Norton,  4  M.  &  W.,  155.  But  where  the  parties 
agree  upon  the  terms  of  a  contract  it  is  binding  upon  them,  though  their  under- 
standing of  the  terms  be  not  precisely  the  same;  as  where  one  party  under- 
stood a  particular  installment  to  bear  interest,  while  the  other  party  did  not  so 
understand  it  Neufeille  v.  Stuart,  1  Hill  Ch.,  109.  But  this  rule  is  to  be  ap- 
plied in  a  limited  sense;  and  if  there  has  occurred  any  error  or  mistake  in  reler- 
ence  to  the  obligations  which  the  contract  entails,  the  case  will  be  otherwise. 
Thus  in  the  case  of  the  Hartford  and  New  Haven  Railroad  Company  v.  Jack- 
son, 24  Conn  ,  514,  it  was  said  that  where  an  application  made  by  the  deteud- 
ant'to  the  agent  of  a  railroad  company,  to  know  at  what  juice  he  would  carry 
50  000  laths  to  a  specified  place,  the  agent  inquired  how  many  bundles  that 


136         I'KY  ON  SPECIFIC  PKRFOKMANCE  OF  CONTRACTS. 

tainin,^r  sundry  special  sripalations  ;  and  it  was  held  that 
the  acceptance  was  conditional  only.  "If/'  said  Jessel, 
M.  R.,(  />)  "  there  is  a  simple  acceptance  of  an  offer  to  pur- 
chase/accompanied  by  a  statement  that  the  acceptor  desires 
that  the  arrangement  should  be  put  into  some  more  formal 
terms,  tlie  mere  reference  to  such  a  proposal  will  not  pre- 
vent the  court  from  enforcing  the  final  agreement  so  arrived 
at.  Bur  if  the  agreement  is  made  subject  to  certain  condi- 
tions tiien  specified  or  to  be  specified  by  the  party  making 
it,  or  by  his  solicitor,  then,  until  those  conditions  are  ac- 
cepted, "there  is  no  final  agreement  such  as  the  court  will 
enforce.'" 

§  275  AVhere  there  is  any  variance  between  the  terms 
of  the  proposal  and  those  of  the  acceptance,  no  contract 
arises ;  as  where  A.  offered  to  purchase  a  house  on  certain 
terms,  possession  to  l)e  given  on  'or  before  the  25th  of 
July,  and  B.  agreed  to  the  terms,  and  said  he  would  give 
possession  on  the  1st  of  August. (g)  And  where  A.  made 
the  promoters  of  a  railway  an  offer  of  a  way-leave  for  the 
purpose  of  their  railway,  which  was  one  for  mineral  traffic 
only,  and  it  was  subsequently  accepted,  but  for  the  purpose 
of  constructing  a  public  railway  for  general  traffic,  this  was 
held  to  be  such  a  variation  in  the  subject-matter  as  pre- 
vented anj^  contract  from  arising,  (r) 

§  376.  The  introduction  of  a  term  in  the  acceptance 
which  is  not  in  the  proposal  is  a  variance  which  prevents 
their  constituting  a  contract.  Therefore,  where  the  delend- 
ant  offered  certain  terms  for  a  lease,  and  the  plaintiff  ac- 
cepted the  terms  and  offered  an  under-lease,  there  was  held 

(p)  L  R  18  En  ,  181.  affirmed  bv  Lorii  Cranworth,  1  Jur.  (N.  S.), 

(9)  Koiilli!d(,'«  V.  Grant.  4  Bing.,  6.53  737,  3  \V    R  ,  535,  sanctioniug  this  argument, 

(r)  Mcyiiell  V    Siirieea,  3  Sm.  <fc  Gif.,  101; 

■would  make,  anrl  a  coinpauion  of  the  defendant,  to  whom  the  inquiry  was  re- 
ferred, replied  ')()() :  but  the  a a:eut  understood  him  to  say  100,  and  thereupon 
jxave  the  defc^ndanl  the  price  ior  carrying  100  bundles,  in.stead  of  500  bundles, 
which  he  agreed  to  pay;  and  the  railroad  company  having  carried  500  bundles, 
sued  the  ilefendant  for  carrying  them  at  the  usual  rates,  the  court  held  that  the 
jilaint ills  were  not  bnund  by 'die  transaction.  Where  letters  passing  between 
tenaut.s  in  comtnon  of  real  estate  are  mere  i)roposals  from  one  to  another  of 
Bale,  and  a  sale  .-'.ccordingly  is  made,  which  is  ratilied  by  the  parties  by  signing 
deed.s,  it  is  too  late  to  object  that  tiie  terms  of  the  first  agreement  have  not  been 
eomplicd  with  as  agreed.  Hunt  v.  Johnston,  24  Miss.  (3  Jones),  50t).  As  to 
Ihc  distinction  between  propo.sitions,  the  acceptance  of  which  amounts  tea 
valid  contract,  and  pro])osals  to  render  a  gratuitous  kindness,  which  are  not 
designed  to  create  legal  obligations  on  the  pardes.  See  Erwin  v.  Erwin,  25 
Ala.,  236. 


NON-CONCLUSIOISr   OF   THE   CONTRACT.  1^7 

to  be  no  contract. (5)  So  where  a  condition  was  introduced 
into  the  acceptance,  it  prevented  its  operating  as  a  con- 
tract. (^)  In  another  case,  where  the  pUiintiff  proposed  a 
contract  to  the  defendant,  stipulating,  among  other  things, 
that  a  lease  should  contain  all  the  covenants  in  the  superior 
lease,  and  the  defendant  signed  the  contract  tendered,  but 
with  the  qualification  that  there  was  nothing  unusual  in 
such  superior  lease :  a  draft  of  the  proposed  lease  w^as  then 
submitted  to  the  defendant,  who  made  some  alterations, 
and  requested  the  plaintiff's  solicitors  to  adopt  them  at 
once,  or  to  refuse  the  lease :  the  solicitors  sent  back  the 
draft,  acceding  to  all  the  alterations  except  one  as  to  assign- 
ing without  license  ;  it  was  held  that  at  this  stage  there  was 
no  contract,  and  that  the  proposed  lessee  could  determine 
the  treaty,  {u)  And  where  a  proposal  was  made  to  take  an 
allotment  of  railway  shares,  and  a  letter  was  returned  ac- 
cepting the  offer,  but  headed  "not  transferable,"  the  new 
term  introduced  by  these  words  prevented  the  proposal  and 
acceptance  from  constituting  a  contract.  (^5) 

§  277.  In  a  case  which  went  to  the  House  of  Lords,  (^) 
the  court  of  appeal  held  that  the  purchaser's  acceptance  of 
a  proposal  for  sale,  "subject  to  the  title  being  approved  by 
our  solicitors,"  did  not  constitute  a  contract  by  reason 
of  the  new  term  ;  for  all  that  the  simple  acceptance  could 
have  given  here  would  have  been  the  right  to  a  good  title, 
and  what  he  stipulated  for  was  a  title  to  be  approved  by 
particular  persons  of  his  own  selection.  But  in  the  House 
of  Lords,  though  the  decision  of  the  court  of  appeal  was 
afhrmed  (on  the  ground  that  no  concluded  contract  had 
been  established),  Lord  Cairns  dissented  from  that  court's 
view  of  the  effect  of  the  words  in  question,  and  said,(^)  "I 
am  disposed  to  look  upon  the  words  as  meaning  nothing 
more  than  a  guard  against  its  being  supposed  that  the  title 
was  to  be  accepted  without  investigation,  as  meaning,  in 
fact,  the  title  must  be  investigated  and  approved  of  in  the 
usual  way,  which  would  be  by  the  solicitor  of  the  pur- 
chaser." 

§  "278.  But  where  the  proposal  leaves  a  term  to  be  de- 

(.)  Hollana  V.  Evre,  2  ^.  &  S  .  194.  (»•')  Ouke  v.  A  n.lrew*.  2  Ex..  2tJ0 

«)  Lucalv  J.ime;  .3  Ha'.  4, 0.  (Jf.  Wright  4  App.  C.  3.1 ;  Hudson  v.  Buc  .  7  ch.  D..  683. 
V  &t.  George,  12  Ir.  Ch.  K..  226.  (a;)  4  App.  C,  322. 


188       fi:y  on  si'K(  iiic  j'ehfokmance  of  contracts. 

<-ided  by  the  acceptance,  the  decision  of  this  will  not,  of 
course,  amount  to  the  introduction  of  a  new  term  ;  as,  e.  g., 
where  the  proposal  has  reference  to  such  a  day  as  shall 
be  named  by  tlie  party  to  whom  it  is  made,  and  he  in  ac- 
cepting names  the  day.Cy)  And  a  contract  by  proposal  and 
acceptance  may,  like  any  other,  leave  the  price  or  any  other 
term  to  be  ascertained  in  a  way  agreed  on.(^) 

§  279.  So,  again,  it  seems  clear  that  a  variation  which  is 
purely  nugatory  will  not  affect  the  contract ;  {a)  nor  will  the 
introduction  into  the  acceptance  of  what  is  not  matter  of 
contract :  as,  e.  g..  the  words,  "we  hope  to  give  you  posses- 
sion at  half-quarter  day,"  which  were  held  to  be  a  mere  ex- 
pression of  hope,  and  so  not  to  introduce  a  new  term  into 
the  acceptance.  (J) ' 

§  280.  Xor  will  the  court  consider  a  new  term  to  be  in- 
troduced by  the  circumstance  that  the  acceptance  proceeds 
to  treat  of  the  way  in  which  the  contract  is  to  be  carried 
into  execution ;  as,  for  instance,  by  referring  to  a  formal 
contract  that  was  to  be  drawn,  (c)     • 

§  281.  Nor  will  a  new  term  be  held  to  be  introduced  by 
tlie  mere  grant  of  some  indulgence  by  the  acceptor  to  the 
proposer ;  as  where  the  proposal  involved  the  payment  on 
a  particular  day,  and  the  acceptance  added  that,  if  the  pay- 
ment was  not  so  made,  interest  at  ten  per  cent  must  also  be 
paid.(<^)  It  would  seem  that  this  could  only  apply  where 
the  time  of  payment  would  be  of  the  essence  of  the  con- 
tract, as  in  any  other  case  it  would  seem  that  such  a  stipu- 
lation was  not  an  indulgence. 

(y)  Boys  v.  Ayerst,  6  Ma'l.,  316.  (6)  Cllve  v.  Beaumont,  1  De  G.  &  Sm.,  397. 

(z)  Walker  v.  Eastern  Counties  Railway  See,  also,  Johnson  v.  King,  2  Blng.,  270. 

Co.,  6  Ha.,  594.  (c)  Gibbins  v.  North  Eastern  Metropolitan 

(a)  Lucas  v.  .James,  3  Ha  ,  410,  421     Cf  Aevlum    District,  11    Beav  ,  1;   Skinner  v. 

infra,  §610,  and  per  Lord  Colonsay  in  Pro-  M'Douall,  2  L)e  G  &  Sm.,  26.t;  Bonnewell  v. 

prletors.  etc  ,  of  English  and  Foreign  Credit  Jenkins,  8  Ch.  D  ,  70;  Ross-iter  v.  Miller,  3 

Co.  Y.  Arduin,  L.  R.  5  H.  L.,  64,  81-2.  App.  C,  1124;  and  see  infra,  §  490. 

(d)  Harris'  Case,  L,.  R.  7  Ch.,  587. 

'  Thus,  A.  wishing  to  purchase  certain  lands,  wrote  to  the  owner,  B.,  inquir- 
ing his  terms  l)y  the  acre,  and  stating  the  payments  which  it  would  be  con- 
venient for  him  to  make,  among  which  was  one  of  $1,000  immediately.  B. 
answered,  stating  his  price,  but  that  he  wished  A.  to  take  the  responsibility  of 
establishing  the  boundaries,  and  acceded  to  the  terms  of  payment  offered,  and 
requiring  A.'s  answer  as  soon  as  possible  A.  replied  that  he  would  take  the 
land  on  the  terms  proposed,  and  would  have  the  lines  ascertained;  though  his 
letter  also  expressed  a  wish  that  the  agent  of  B.  would  attend  to  the  fixing  of 
the  line  on  one  side,  on  account  of  feelings  of  delicacy  on  A.'s  part,  in  respect 
to  the  conterminous  tenants  on  that  side,  but  not  waiving  or  abandoning  his 
acceptance  of  the  offer.  Held,  that  the  contract  of  sale  was  complete.  Fitz- 
hugh  V.  Jones,  0  Munf.,  83. 


NO^'-CONCLUSION    OF   THE   CONTRACT.  139 

§  282.  The  acceptance  must  be  communicated  in  some 
-  way  by  the  accepting  party  to  the  other  ;  a  mere  mental  ac- 
ceptance Avill  not  do.  "The  plea  is  not  good,''  said  Brian, 
C.  J.,  "without  showing  that  he  certified  the  other  of  his 
pleasure,  for  it  is  common  learning  that  the  intent  of  a  man 
is  not  triable — for  even  the  devil  does  not  know  the  intent 
of  a  man.  (e) 

§  283.  The  acceptance,  moreover,  must  be  without  un- 
reasonable delay.  "When  I  offer  anything  to  a  person," 
said  Lord  Cran worth, (/')  "what  I  mean  is,  I  will  do  that 
if  you  choose  to  assent  to  it ;  meaning,  although,  it  is  not 
so  expressed,  if  you  choose  to  assent  to  it  within  a  reasona- 
ble time."  This  principle  is  illustrated  by  the  case  of  Wil- 
liams V.  William  s,(^)  of  which  the  circumstances  were,  that 
in  1817  A.  wrote  to  B.  that  he  had  credited  B.'s*  account 
with  £220  in  consideration  of  a  contract  by  B.  to  convey 
certain  houses.  The  abstract  was  delivered  ;  but  there  was 
no  acceptance  in  writing  by  B.,  who,  however,  five  years 
afterwards  filed  his  bill  against  A.  for  specific  performance. 
It  appeareil'  that  in  1827  A.  had  abandoned  the  treaty,  and 
that  in  1829  botli  parties  considered  it  as  broken  off,  but 
nevertheless  that  B.  had,  in  the  meantime,  had  the  benefit 
of  the  credit  of  £220.  The  court  dismissed  the  bill  on  the 
ground  that  an  offer  to  convert  it  into  a  contract  must  be 
accepted  and  acted  on  within  a  reasonable  space  of  time.' 

(e)  Year  Book,  17  Edw.  IV,  T.  Pasch.,  2,       (/)  In  Meynell  v.  Surtees,  1  Jur.  (N.  S.), 
referred  to  by  Lc^d  Blackburn  in  Brogfien  v.    737;  3  W.  R.,  .')35 
Metropolitan  Railway  Co.,  2  A  pp.  C,  692.  (g)  17  Beav.,  213. 

'  Acceptance  within  a  reasonable  time  is  as  definite  a  rule  as  can  well  be  laid 
down.  Beckweth  v.  Cheever,  1  Foster,  41:  Peru  v.  Turner,  1  Fairf..  185.  As 
to  what  constitutes  reasonable  time  must  be  determined  by  the  circumstances 
of  each  case;  and  it  has  been  said  that  "if  the  party  addressed  goes  away  and 
returns  the  next  week,  or  the  next  month,  and  says  that  he  will  accept  the 
proposition,  he  is  too  late,  unless  the  proposer  assents  in  his  turn.  So  it  would 
be,  probably,  if  he  came  the  next  day  or  the  next  hour;  or,  perhaps,  if  he  went 
away  at  all  and  returned."  1  Pars,  on  Contr. .  404.  In  the  case  of  Peru  v. 
Turner,  1  Fairf.,  IHo,  the  town  of  P.,  by  vote,  agreed  to  accept  of  a  pauper,  as 
an  inhabitant,  on  condition  that  the  town  of  T.  would  relinquish  all  demands 
against  the  former  town.  Nearly  six  years  afterward  the  town  of  T.  accepted 
the  proposition,  and  tendered  to  the  town  of  P.  a  note,  that  being  the  only  de- 
mand  it  held  against  that  town.  This  was  held  to  be  an  unreasonable  delay, 
and  that  the  tender  was  wholly  inoperative  to  revive  the  proposal  and  to  render 
it  binding  on  tlie  town  of  P.  And,  again,  in  Wilson  v.  Clements,  8  Mass.,  1, 
A.  and  B.  having  an  open  account,  an  adjustment  takes  place  between  A.  and 
an  agent  of  B  duly  authorized,  and  the  balance  found  due  is  paid  over  to  the 
agent  B.  expresses  dissatisfaction,  whereupon  A.  writes  to  B. :  "Re-peruse 
the  accounts,  make  out  a  statement  according  to  your  wishes,  and  draw  on  me 
for  the  balance,  which  shall  be  punctually  honored."    Two  years  afterwards, 


140        FRY  OX  SPECIFIC  PKHFOIIMANCE  OF  CONTRACTS. 

In  another  case  A.  applied  to  a  company  for  shares  on  the 
8tli  of  .hine,  and  an  allotment  was  made  on  the  following 
23d  of  November,  and  it  was  held  that  the  acceptance  of 
the  proposal  to  take  shares  came  too  late  to  bind  the  pro- 
poser. (Zt) 

§  284.  The  proposal,  before  conversion  into  a  contract 
by  acceptance,  may  be  determined  in  two  ways— by  the 
withdrawal  of  the  person  making  the  offer,  or  by  the  refusal 
of  tiie  person  to  whom  it  is  made. 

jj  Tj^rt.  First,  it  may  be  determined  by  the  proposer  by 
witlidrawal  before  acceptance, (/)  because  the  proposal  by 
itself  creates  no  mutuality  and  no  obligation  ;  so  that  where 
a  person  made  an  offer  for  a  farm,  which  the  owner  intended 
to  accept,  but  did  not  do  so  bindingly,  and  the  proposer 
subsequently  withdrew  his  offer,  it  was  held  that  he  could 
do  so,  and  that  there  was  no  contract. (,/)  And  so.  also, 
wiiere  A.,  by  writing,  applied  to  a  company  for  shares, 
"which  he  thereby  accej^ted"  and  paid  the  deposit,  but 
before  allotment  withdrew  his  application  and  unsuccess- 
fully required  the  return  of  his  deposit,  and  rni  allotment 
was  made  to  him,  he  was  held  not  to  be  a  contributory. (>^:) 
And  where  a  railway  company  gave  notice  to  treat  for  part 
of  a  manufactory,  which  w^as  met  by  a  counter-notice  re- 
quiring tliem  to  take  the  whole,  and  the  company  then 
gave  notice  of  their  intention  to  apply  to  the  board  of  trade 
for  the  appointment  of  a  surveyor  to  deteiniine  the  value  of 
the  premises  required  by  the  notice  to  treat  and  of  the 
further  lands  which  the  owner  could  lawfuUj^  require  and 

(h)  Ramsgale  Victoria  Hotr-l  Co    (limittd)  auction   to  -withdraw  fne  property  at   any 

V.  Moiiufl>re,  I>.  R   1  Ex.,  100.  lime  bel'ore   trie   limnmer  f.ills)  Warlow  v. 

(i)  Tiiornhury  v  Revill,  1  Y.  &  C  C.  C  ,554.  Harrison,  28  L  J   Q.  B  .  18. 

See,  also,  Mi-viiell  v.  Snrtees,  I  Jur.  (N.  S.),  (  /)  W  aruer  v.  Wiiiinaton.  3  Drew.,  523;  cf. 

737;  3  VV.  K  ,  535;  Horsfall  v.  Gamett,  6  id.,  Ru'mmeua  v.  Robins,  4  De  G.  J.  &  S.,  88 

387;  and  cf.  (a>  to  the  right  of  a  vendor  at  an  (k)  Ex  parte  Grahaiu,  3i)  L  J.  Bank.,  42. 

B.  Ix'iiii,''  pressed  by  a  creditor,  draws  a  bill  on  A.  iu  favor  of  the  creditor.  It 
was  held  that  A.  was  not  bound  to  accept  or  pay  a  bill  so  drawn.  It  seems, 
also,  that  where  a  merchant  receiving  goods  on  consignment,  under  an  offer  of 
sale,  after  he  had  ascertained  the  value  of  the  goods  bj'  actual  sale  of  a  large 
part  of  tiiem  as  factor,  and.  twelve  days  after  the  receipt  of  the  goods,  assented 
to  the  offer  of  the  consignor,  such  assent  will  not  be  binding  upon  the  con- 
signor. In  the  case  of  Mactier  v.  Frith,  6  Wend.,  103,  it  is  said  that  a  willing- 
ness to  enter  into  the  agreement  by  the  party  offering,  is  presumed  to  continue 
for  the  time  limited:  and  if  that  time  be  not  limited  by  the  author,  then  until 
it  is  expressly  revoked  or  countervailed  by  a  contrar}-  presumption.  But  these 
remarks,  though  applicable  to  the  case  then  under  ccmsideration,  it  seems,  are 
evidently  not  intended  to  be  construed  in  their  broadest  interpretation. 


I 


NON-CONCLUSION   OF  THE   CONTRACT.  141 

had  required  the  company  to  take ;  it  was  held  that  the 
company  might  still  withdraw  their  notice  to  treat.  (Z) 

§  286.  This  right  to  retract  is  not  affected  by  the  fact 
that  the  offer  itself  specifies  a  time  within  which  the  accept- 
ance is  to  be  made  ;  so  that  where  A.  offered  to  sell  a  house 
to  B.,  and  gave  B.  six  weeks  for  a  definite  answer,  A.  was 
held  entitled  to  withdraw  his  offer  before  the  expiration  of 
that  period,  (m)' 

§  287.  Further,  it  is  not  necessary  to  the  effectual  deter- 
mination of  a  proposal  by  withdrawal  before  acceptance 
that  any  formal  or  express  notice  of  withdrawal  or  retracta- 
tion should  be  given  to  the  person  to  whom  the  proposal  was 
niade.(yi)  "It  may  well  be  that  the  one  man  is  bound  in 
some  way  or  other  to  let  the  other  man  know  that  his  mind 
with  regard  to  the  offer  has  been  changed  ;"(o)  but  as  soon 
as  the  person  to  whom  the  offer  was  made  in  fact  has  this 
knowledge,  as,  for  instance,  by  knowing  that  the  proposer 
has  sold  the  property  to  a  third  person,  he  will  be  taken  to 
have  sufficient  notice  of  withdraAval,  and  he  cannot  after- 
wards, by  accepting  the  offer,  make  a  binding  con- 
tract, (o) 

§  288.  Where  however  the  communication  is  not  a  mere 
offer  to  contract  but  a  notice  given  in  pursuance  of  a  right 
of  pre-emption,  the  notice  may,  according  to  the  terms  of 
the  instrument  giving  this  pre-emption,  be  incapable  of 
being  withdrawn.  (/?) 

§  28».  In  the  second  place,   the  refusal  of  the  person 

(0  Grierson  V.  Cheshire  Lines' Conimitice,  (o)  Prr  James,  L    J..  2  Ch    D  ,  472.    Cf. 

L   11.  i9  Eq  ,  83.  Stevenson  v.  McLean,  ^  Q  B.  D.,d4b;  ouu- 

\?n)  Uouiledgev.  Grant,4Bing.,653;  Cooke  lamore  v.  Peacocke,  12  Ir.  Ch.  R.,  300. 

V    Oxley,  3  T.   R..  653.     Cf.  Dickenson  v.  (;>)  See  Uomlray  v.  FothergiU,  L.  K.  1  i!-q-, 

Dodds,  2Ch   D.,463.  567. 

(n)  Dickenson  v.  Dodds,  2  Ch.  D.,  463,  474. 


1  If  an  offer  is  made,  and  instantly  recalled,  before  acceptance,  "although 
the  other  party  was  prepared  to  accept  it  the  next,  the  offer  is  effectually  with- 
drawn.' Pars.  Coutr.,  vol.  1,  p.  405;  Mactier  v.  Frith,  6  Wend.,  103.  It  is 
said,  in  The  Palo  Alto,  Daveis,  344,  that  in  all  engagements  formed  inter  ab- 
sentes  by  letters  or  messengers,  an  offer  by  one  party  is  made,  at  law,  at  the 
time  when  it  is  received  by  the  other.  Before  it  is  received,  it  may  be  revoked. 
So  the  revocation  in  law  is  made  when  it  is  received,  and  not  before.  If  the 
party  to  whom  the  offer  is  made  accepts  and  acts  on  the  offer,  the  engagement 
willbe  binding  on  both  parties,  though,  before  it  is  accepted,  another  letter  or 
messenger  may  have  been  dispatched  to  revoke  it. 


142         FllV  ON  SPKiaKU:  TKUFOUMANCE  OP^  COXTRACTS. 

to  wlioni  the  proposal  is  made  puts  an  end  to  it ;  and  it  will 
not  be  revived  by  a  subsequent  tender  of  acceptance. (^)' 

i;  290.  As  it  is  competent  to  the  i)roposer  to  recall  his 
proposal  at  any  time  before  acceptance,  so  also  he  may  vary 
it  by  the  introduction  of  any  new  term  into  it.  And  as  the 
person  to  whom  the  proposal  is  made  may,  of  course,  offer 
to  accept  the  terms  proposed  with  any  variation  or  addition, 
it  follows  that  each  party  may  continue  to  add  fresh  stipu- 
lations to  the  proposed  contract,  until  the  terms  proposed 
by  one  side  have  been  definitely  accepted  by  the  other,  (r) 
Therefore,  where  the  owner  of  an  estate  made  a  proposal 

(«7>  Hyde  V.  Wrench,  3   Beav  ,  334.    The  probably  cannot  be  maintained  on  this  point 

decifiion  in  Hodgson  v.  Hutchenson,  5  Vin.,  (?)  Honeyman  v.  Marryat,  21    Keav.,   14, 

Abr.,  522,  pi.  34,  which  inferred  an  accept-  affirmed  in  L>.  P.  6  H  L.  C  ,  112.    Distinguish 

ance   from   acts  after  an  explicit   refusal,  Jolliffe  v.  Blumberg,  IS  W.  R  ,  784. 

'  In  the  case  of  Boston,  and  Maine  Railroad  v.  Bartleit,  3  Cush  ,  224,  there 
was  a  proposition  to  sell  land  at  a  stated  price,  the  answer  to  be  given  in  thirty 
da3's  Fletcher,  J.,  in  delivering;  the  opinion  of  the  court,  held,  that  though 
this  offer  was  a  continuing  one,  "  during  the  whole  of  that  time  it  was  an  offer 
every  instant,"  yet,  that  it  might  be  revoked  at  any  time  before  acceptance. 
But  if  unrevoked  at  the  time  of  acceptance,  it  become  a  valid  and  binding  con- 
tract. See,  also,  Pars.  Contr.,  404  and  405;  Foster  v.  Boston,  22  Pick.,  33,  is 
an  interesting  case  decided  on  the  same  point.  The  case  was  this  :  In  March, 
an  offer  was  made  to  the  city  of  Boston,  by  several  memorialists,  to  relinquish 
their  interest  in  the  land  which  would  be  required  to  lay  out  a  certain  street, 
provided  it  should  be  opened  within  the  year.  In  April  the  city  voted  to  ap- 
propriate a  certain  sum  for  that  year,  to  be  paid  to  the  memorialists  in  full  for 
all  expenses  and  damages  when  the  street  should  be  completed  In  June,  two 
of  tlie  memorialists  sent  a  letter  to  their  associates  and  the  mayor,  explaining 
their  offer  to  be  to  relinquish  all  damages  for  the  land,  but  not  the  expense  of 
removing  the  buildings,  etc.  In  October,  the  city  passed  an  order  to  lay  otit 
the  street,  and  it  was  done  within  the  year.  Soon  after  the  passing  of  this 
order,  the  said  two  memorialists  protested  against  the  laying  out  such  street, 
and  said  that  they  should  claim  damages,  and  accordingly  made  complaint.  It 
was  held  that  the  offer  was  a  continuing  one  for  the  year,  if  not  revoked  or  re- 
jected; that  the  vote  of  April  was  not  a  rejection,  but  a  distinct  proposition; 
and  that,  by  passing  the  order  the  cit}'  accepted  the  offer  as  explained  by  the 
complainants,  and  tiiat  it  then  became  a  binding  contract,  and  that  the  offer 
was  several  in  its  operation,  and  not  joint.  It  is,  in  all  cases,  the  final  assent, 
the  positive  and  unqualified  acceptance  of  the  one  party,  that  renders  the  offer 
obligatory  upon  the  party  making  it.  And,  tlierefore,  when  an  engagement  is 
made  by  a  party  to  decide,  on  the  happening  of  a  particular  event,  whether  to 
accept  an  offer  of  a  contract  of  sale,  the  contract  is  not  completed  on  the  hap- 
pening of  the  event,  imtil  the  decision  is  made.  Mactier  v.  Frith,  6  Wend., 
103.  In  reference  to  an  alleged  want  of  consideration,  in  contracts  of  this  kind, 
Fletcher,  J.,  in  the  case  of  the  Boston  and  Maine  Railroad  v.  B-artlett,  cited 
above,  says:  "The  acceptance  by  the  plaintiffs  constituted  a  sufficient  legal 
consideration  for  the  engagement  on  the  part  of  the  defendants.  It  was  pre- 
cisely as  if  the  parties  had  met  at  the  time  of  the  acceptance,  and  the  offer  had 
then  been  made  and  accepted  at  once."  It  seems  to  be  clear  that  these  cases 
are  no  more  invalidated  for  want  of  consideration,  than  those  where  an  instan- 
taneous assent  is  given  to  the  proposition  offered.  Pars.  Contr.,  vol.  1,  p.  406. 
Wright  V.  Bigg,  21  E.  L.  &;  E.,  5!)1;  Frith  v.  Lawrence,  1  Paige,  434.  Notice 
of  refusal  to  accept  is  not  necessary :  it  is  sufficient  if  there  is  no  evidence  of 
acceptance;  and  whether  there  has  been  an  acceptance  or  not,  is  a  question  for 
the  jury.     Corning  v.  Colt,  5  Wend.,  253. 


NON-CONCLUSION   OF   THE   CONTRACT.  143 

requiring  amongst  other  things  the  payment  of  £1,500  by 
way  of  deposit,  and  the  jDiirchaser  objected  to  it,  and  before 
he  accepted  the  terms,  the  owner  required  it  to  be  paid  and 
the  contract  to  be  signed  before  a  given  day,  or  the  treaty 
to  be  at  an  end,  and  this  was  not  complied  with,  but  a  sub- 
sequent offer  was  made  to  sign  the  contract  and  pay  the 
deposit ;  the  court  held  that  there  was  no  contract. (.v)' 

§  291.  The  Statute  of  Frauds  requiring  that  the  memo- 
randum of  agreement  shall  be  signed  by  the  party  to  be 
charged  therewith  and  not  requiring  the  signature  of  both 
parties,  it  follows  that  where  there  is  a  writing  under  the 
hand  of  the  defendant  expressing  the  contract,  there  is  no 
need  to  prove  an  acceptance  in  writing  by  the  plaintiff  of 
the  terms  of  that  contract,  and  the  institution  of  the  action 
is  a  sufficient  acceptance.  (^)  If  that  writing  leaves  any  term 
open  to  the  election  of  the  other  party,  the  acceptance  must, 
of  course,  be  in  writing  to  satisfy  the  statute.  (?^)' 

§  293.  But  the  cases  have  gone  further,  and  it  is  now 
w^ell  settled  that  where  the  writing  is  a  memorandum  expres- 
sing not  a  contract  but  a  mere  proposal,  yet  there  the 
acceptance  of  this  proposal  (though  it  seems  essential  to 
convert  the  proposal  into  a  contract),  need  not  be  in  writing. 
This  was  so  decided  by  Kindersley,  V.  C,  in  a  case  where 
he  observed  on  the  want  of  previous  authority  distinctly  to 
establish  the  point, («)  and  his  decision  was  subsequently 
followed  by  the  courts  of  exchequer  and  exchequer  cham- 

(s)  S  C  (")  I'J- 

(t)  Boys  T.  Ayerst,  6  Mad.,  316.  l»)  Warner  v.  Willington,  3  Drew  ,  52a. 


1  See  Foster  v.  Boston,  22  Pick.,  33. 

5  A  writiug  signed  by  tlie  party  to  he  charged  is  sufficient  within  the  statute 
of  frauds.  Hence,  where  the  oHer  embraces  the  whole  of  the  iiroposcil  agree- 
ment, so  that  a  single  assent  only  is  required,  a  parol  acceptance  may  be  all 
that  is  needed  to  bind  the  party  who  makes  the  oiler,  ^^arner  v.  \\  illinglou. 
3  Drew,  523:  Coleman  v.  Upcot.  5  Viu.  Abr.,  527:  PI.,  17;  Palmer  v  beott.  1 
K  6c  M.,  391;  contra,  Lane  v.  McLaughlin,  14  Minn.,  72.  A  party  made  an 
offer  by  letter,  which  was  verbally  rejected.  Held,  that  the  writer  was  released 
from  his  oiler,  unless  he  consent  to  renew  the  negotiation.  Miel held  C  anal «.  o. 
V  Sheffield  li.  R.  Co.,  3  K.  R.  Cas.,  121.  Where  a  party  mentally  concludes  to 
accept  an  olTer,  but  does  nothing  to  indicate  such  acceptance— held,  there  \yas 
no  binding  contract.  Firth  v.  Lawrence,  1  Paige's  Ch.,  434;  White  v.  CorUss, 
40  N.  Y.,  467. 

Teleqram  1  An  offer  maybe  made  and;accepted  by  telegraph  that  will  be  bind- 
ing on  both  parties.  Duble  v.  Batts,  38  Texas,  312;  Weils  v.  3Iilwaukee  K.  R. 
Co.,  30  Wis.,  605. 


► 


144        FRY  ON  srECIFIC  PEUFORMANCK  OF  CONTRACTS. 

her.{w)  In  tlie  old  case  of  Coleman  v.  Upcot,(^)  where 
there  was  lirst  an  acceptance  by  the  plaintiff  by  parol,  and 
subsequently  a  subscription  by  the  plaintiff,  the  parol  ac- 
ceptance ai)pears  to  have  been  the  ground  of  the  decision 
tliat  there  wns  a  binding  contract. 

§  293.  When  it  has  been  once  established  that  the  ac- 
ceptance need  not  be  in  writing,  it,  of  course,  follows  that 
it  may  be  by  acts  as  well  as  wovds.iy)  Thus,  for  example, 
where  an  uncle  of  a  young  man  sent  proposals  to  the  friends 
of  a  lady,  to  which  no  answer  was  returned,  but  the  young 
man  was  admitted  as  a  suitor,  and  the  marriage  ensued,  it 
was  held  by  Lord  Nottingham  to  amount  to  a  complete  con- 
tract, which  ought  to  be  performed  on  all  sides.  (^)  It  is  a 
matter  of  every  day  occurrence  to  infer  assent  from  acts  as 
well  as  from  words.' 

§  294.  Of  course  no  action  can  be  brought  against  any 
one  on  a  parol  acceptance  of  a  proposal. 

§  295.  In  contracts  constituted  by  proposal  and  accept- 
ance, it  is  obvious  that  the  question  may  arise,  at  what  time 
the  treaty  was  converted  into  a  contract. («?)  The  contract 
is  X)erfected  by  the  posting  of  a  letter  declaring  the  accept- 
ance, because  thereby  the  acceptor  has  done  all  that  is 
requisite  on  his  part,  and  is  not  answerable  for  the  casual- 
ties of  the  ]30st-ofRce.(6)  Hence  it  follows  that  the  contract 
dates  from  the  posting,  and  not  from  the  receipt  of  the  letter 
of  acceptance,  (c)  The  current  of  authorities  which  estab- 
lish these  propositions  was  somewhat  interrupted  by  two 
cases.  One  was  that  of  The  British  and  American  Telegraph 
Co.  (limited)  v.  Colson,(fZ)  where  the  acceptance  having 
never  been  received  by  the  proposer  it  was  held  that  there 
was  no  contract,  and  it  was  laid  down  that  the  contract  is 
not  completed  till  the  acceptance  is  delivered  to  or  brought 
to  the  Ivnowledge  of  the  proposer,  unless  this  happen  from 

(w)  Smith  V.  Neale,2  C.  B.  (X.  S.),67;  Reuss  (a)  Cf.  on  this  point,  Dickenson  v.  Dodds, 
V.   Picksley,   L.    R.   1   Ex.,  342.     See,  also,  2  (;h.  D,  4G3;  supra,  §  287. 
Mozley  v.   l  inkier,  1  C.  M.  &  R  ,  692;  Liver-  (b)  Dunlop  v.  Higgins,  1  H.  L  C.,381;  Dun- 
pool  Horough  Biink  v.  Eccles,  4  H.  &  N.,  139.  can  v.  Topham,  8  0   B.,  2i5:  Adams  v.  Lind- 

(X)  5  Vin.  .\br.,  527,  pi.  17;   cf.  Palmer  v.  sell,  1  H  &  Al.,  681;  Stocken  v.  Collin,  7  M. 

Scott,  1  R  &  My.,  391.  &  W.,  51.5;  Hams'  Ca6e,  L   R.  7  Ch.,  587. 

(y)  Williams  v.  Williams,  L.  R.  2  Ch.,  294.  (c)  Potter  v  Sanders,6  Ha.,  1;  Byrne  v.  Van 

(2)  Parker  v.  Serjeant,  Fluch,  146.  Tiendoven,  5  C.  P.  D  ,  344. 

(d)  L.  R.  6  Ex.,  108. 

'  Parol  contract  fuUj/  performed.]  A  parol  contract  for  the  exchange  of  lands, 
was  clearly  proved,  and  fully  performed  by  the  plaintiflf.  Held,  that  specific 
performance  would  be  decreed.     Armes  v.  Bigelow,  8  Mc Arthur  (D.  C),  442. 


NOisr-cois^CLUsioisr  or  the  contract.  145 

liis  own  act  or  default.  In  the  other  case,(6)  Malins,  V.  C, 
adopted  the  same  view.  But  the  authority  of  these  cases 
is  much  shaken  by  the  observations  subsequently  made  on 
the  former  of  them  by  James  and  Mellish,  L.  JJ.,(/)  and 
by  the  expression  of  change  of  oiDinion  by  the  learned  vice 
chancellor,  {g) 

§  296.  In  case  of  there  being  an  agent  for  the  proposer, 
the  communication  of  the  acceptance  to  him  comiDletes  the 
contract,  though  the  agent  may  fail  to  make  known  the  ac- 
ceptance to  his  principal,  {hy 

(e)  Townsend's  Case,  L.  R.  13  Eq.,  148.  {g)  Wall's  Case,  L.  R.  15  Eq  ,  18. 

(/)  Harris'  Case,  L.  R.  7  Ch.,  687.  (/»)  Wright  v.  Bigg,  15  Beav.,  592. 

'  An  example  of  the  full  extent  of  this  doctrine  is  afforded  in  Vassar  v. 
Camp,  1  Kern.  (N  Y.),  441;  the  principal  of  which  is,  without  doubt,  the  law 
of  the  State  of  New  York.  A.  proposed,  by  mail,  a  contract  with  B.,  the 
parties  being  distant  from  each  other.  B  ,  accepting  the  contract,  deposited 
his  acceptance  in  the  post-office,  addressed,  and  to  be  forwarded  to  A.  A.  did 
not  receive  the  acceptance.  Held,  that  the  contract  was  complete  and  binding. 
Mactier  v.  Frith,  6  Wend.,  103,  is  a  decision  of  much  importance  on  this  sub- 
ject, and  one  which  has,  in  a  great  measure,  influenced  the  more  recent  de- 
cisions throughout  the  country.  It  was  there  held,  that  where  a  joint  owner 
of  a  cargo  of  brandy  ordered  from  France,  and  supposed  to  be  at  sea,  wrote 
from  St.  Domingo  to  his  co-owner,  in  New  York,  on  the  24th  of  December, 
proposing  that  the  latter  should  take  the  adventure  solely  on  his  own  account, 
and  he  on  the  17th,  in  answer  to  the  proposition,  said  he  would  delay  coming 
to  a  determination  until  he  again  heard  from  the  party  making  the  offer,  and 
the  owner  in  St.  Domingo,  on  the  7th  of  March,  acknowledged  the  receipt  of 
the  answer,  saying  he  had  noted  its  contents;  and  on  the  28th  of  March,  by 
another  letter;  confirmed  the  offer  made  in  December,  and  the  owner  in  New 
York,  on  the  25th  of  March,  after  the  arrival  of  the  brandy  in  port,  wrote  to 
the  owner  in  St.  Domingo,  that  he  had  decided  to  take  the  adventure  to  his  own 
account,  and  had  credited  him  with  the  invoice;  that  the  offer  to  sell  remained 
open,  and  that  its  acceptance  on  the  25th  of  March  closed  the  bargain,  notwith- 
standing that  the  letters  of  the  25th  and  28th  of  March  did  not  reach  their  des- 
tination until  after  the  death  of  the  party  accepting,  which  happened  on  the 
10th  of  April.  Busbon  v.  Boyd,  4  Paige,  17,  and  Clark  v.  Dales,  20  Barb. ,  42 
are  authorities  to  the  same  effect.  In  Connecticut,  New  Hampshire,  Pennsyl- 
vania, Georgia,  Kentucky  and  Alabama,  the  courts  have  followed  the  decision 
of  Mactier  v.  Frith,  and  the  English  case  of  Adams  v.  Lindsell ;  see  Avenll  v. 
Hedge,  12  Conn.,  424;  Beckwith  v.  Cheever,  1  Foster,  41;  Hamilton  v,  Lycom- 
ing Ins.  Co.,  5  Barr,  339;  Levy  v.  Coke,  4  Geo.,  1;  Chiles  v.  Nelson,  7  Dana, 
281-  Falls  V.  Gaither,  9  Porter,  605.  In  Tennessee  the  rule  is  the  reverse. 
Gillespie  V.  Edmunston,  11  Humph.,  553;  as  it  is  likewise  in  Massachusetts. 
McCullough  v.  Eagle  Ins.  Co.,  1  Pick.,  278.  The  variance  between  the  law  of 
the  latter  State  and  that  of  the  Supreme  Court  of  the  United  States  is  best 
illustrated  by  a  comparison  of  the  case  of  Tayloe  v.  Merchants'  Fire  Ins.  Co., 
decided  in  that  court,  and  the  case  of  Thayer  v.  Middlesex  Mutual  Fire  Ins. 
Co.,  found  in  10  Pick.,  326.  In  the  former  case,  it  was  held,  that  m  a  corres- 
pondence to  effect  the  insurance  of  a  house,  when  the  insurance  company  had 
made  known  their  terms,  and  the  other  party  had  put  a  letter  in  the  post-office 
accepting  their  terms,  that  the  contract  was  complete;  and  the  property  havmg 
been  destroyed  by  fire  while  the  letter  was  still  in  transit,  that  the  company 
were  responsible.  Thayer  v.  Middlesex  Fire  Ins.  Co.  was  this :  On  the  15th  of 
January,  an  application  was  made  on  behalf  of  the  plaintiflf,  who  lived  at  Hop- 
kinton,  to  the  defendants,  an  insurance  company  at  Concord,  for  insurance 
upon  the  plaintiff's  buildings.  The  defendants  stated  the  terms  on  which  they 
10 


146         FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

§  «97.  One  species  of  contract  by  proposal  and  accept- 
ance is  constituted  by  a  promise  or  representation  made  by 
one  person,  and  acts  done  by  another  person  on  the  faith  of 
such  promise  or  representation.  "A  representation,"  said 
Lord  Cottenliam,(/)  "made  by  one  party  for  the  purpose  of 
inthiencing  the  conduct  of  the  other  party,  and  acted  on  by 
him,  will  in  general  be  sufficient  to  entitle  him  to  the  assist- 
ance of  this  court  for  the  purpose  of  realizing  such  repre- 
sentation." 

§  298.  Representations  are  of  two  kinds :  the  one  of 
things  past  or  present,  the  other  of  things  future  ;  the  one 
of  things  done  or  existing,  the  other  of  things  to  be  done. 
With  regard  to  the  former  class,  whenever  a  representation 
as  to  something  alleged  as  a  then  existing  fact,  which  repre- 
sentation is  not  true,  has  been  made  by  a  person  who  knows 
it  to  be  untrue,  or  does  not  know  it  to  be  true,(y)  to  another 
person  in  order  to  induce  him  to  an  act,  and  that  act  has 
been  thereupon  done  by  the  second  person  to  his  prejudice, 
the  person  making  the  representation  will  not  be  allowed  by 
the  court  afterwards  to  turn  round  and  deny  the  alleged 
fact.  "It  shall  be,"  said  Lord  Mansfield,  C.  J.,(^)  " ^s  rep- 
resented to  be."  Thus,  for  example,  where  one  person 
represented  to  another,  on  a  treaty  for  marriage  with  his 

(i)  In  Hammersley  V.  De  Biel,  12  01.  &  Fin  ,  (j)  Per  Grant,  M.  R.,  in  Ainslie  v.  Medly- 

62,  n.;  cl".  Ayliffe  v.  Tracey,  2  P.  Wms.,  64,  cott,  9  Ves  ,  21. 

which  shows  that  where  the  act  was  not  done  (^•)  In    Monteflori   v.    Montefiori,    1   Wm. 

in  reliance  on  the  representation,  no  contract  Black.,  364. 
arises. 

would  insure  them,  and  prepared  a  written  application  and  a  premium  note, 
both  bearing  date  of  the  16th,  to  be  signed  by  the  plaintiff;  and  upon  their 
being  returned  to  the  defendants  by  mail,  a  policy  bearing  the  same  date  was 
to  be  forwarded  to  the  plaintiff.  The  plaintiff's  agent,  who  was  postmaster  at 
Hopkinton,  presented  the  written  application  and  the  notes  to  the  plaintiff  on 
the  28th,  and  the  plaintiff  signed  them  forthwith,  and  left  them  in  the  hands 
of  the  postmaster,  to  be  forwarded  to  the  defendants.  There  was  a  mail  every 
Saturday,  and  these  papers  were  mailed  and  forwarded  on  Saturday,  the  3d  of 
February;  but  the  defendants  refused  to  give  the  plaintiff  a  policy,  the  buildings 
having  been  destroyed  by  fire  on  the  31st  of  January.  In  an  action  for  the 
loss,  it  was  held  that  no  contract  of  insurance  had  been  completed  between 
the  parties,  the  papers  signed  being  in  the  hands  of  his  agent,  and  were  not 
receivable  until  after  the  buildings  had  been  destroyed.  The  cases  may  not, 
perhaps,  be  directly  opposed  to  each  other,  but  the  principle  upon  which  they 
rest  are  certainly  not  analagous.  From  the  moment  when  the  minds  of  the 
contracting  parties  meet,  signified  by  overt  acts,  the  agreement  is  obligatory, 
although  a  knowledge  of  such  occurrence  is  not  known  at  the  time  to  both 
parties.  Mactier  v.  Frith,  G  Wend. ,  103.  But  this  assent  must,  under  all  cir- 
cumstances, be  signified  by  overt  acts ;  and  therefore  an  intention  to  insert  in  a 
letter  an  acceptance  of  an  offer  by  a  person  to  whom  it  is  directed,  but  which 
is  accidentally  omitted,  i.<  of  no  effect.     Frith  v.  Lawrence,  1  Paige,  434. 


NON-CONCLUSION   OF   THE   CONTRACT.  147 

daughter,  that  a  certain  demand  was  not  existing,  he  was 
afterwards  restrained  by  the  court  from  iDroceeding  to  re- 
cover the  demand  ;(Z)  and  where  a  father  represented  to  a 
future  husband  of  his  daughter  that  she  was  entitled  after 
the  death  of  her  parents  to  £10,000,  and  she  was  in  fact  only 
entitled  to  about  half  that  amount,  the  balance  was  recov- 
ered from  the  father's  estate. (???-)  But  in  these  cases,  the 
court  acts  merely  on  the  principle  of  preventing  fraud,  and 
not  at  all  on  contract  •,{n)  and  they,  therefore,  do  not  prop- 
erly come  in  for  discussion  here. 

§  299.  But  with  regard  to  representations  of  something 
future,  and  within  the  power  of  the  party  making  the  state- 
ment, the  case  is  different ;  for  such  a  representation,  made 
for  a  particular  purpose  by  one  person,  and  followed  by 
conduct  in  pursuance  of  it  by  the  other,  constitutes  a  true 
and  proper  contract.  "There  is  no  middle  term,"  said 
Lord  Cranworth,(t))  "  no  th'tium  quid  between  a  representa- 
tion so  made  to  be  effective  for  such  a  puri^ose  and  a  con- 
tract ;  they  are  identical."  In  one  case  an  uncle  represented 
that  he  would  buy  a  warehouse  for  his  nephew,  and  at  the 
uncle's  instance  the  nephew  entered  into  a  binding  contract 
to  purchase  the  warehouse ;  it  was  there  held  that  the 
imcle's  estate  was  bound  to  find  the  purchase  money.  (^) 

§  300.  In  order  to  enable  the  court  to  give  relief  on  the 
ground  of  contract  to  a  person  who  has  acted  on  the  faith 
of  another's  statements,  the  representation  or  promise  on 
which  he  relies  must  be  clear  and  absolute.  Therefore, 
where  a  father,  after  declining  to  enter  into  a  settlement,  ad- 
ded that  he  should  allow  his  daughter  the  interest  of  £2,000, 
and  that  if  she  married  he  migJit  bind  himself  to  do  it,  and 
pay  the  principal  at  his  decease,  it  was  held  not  to  be  an 
absolute  contract  ;($-)  and  so  where  the  father  of  an  intended 
husband  made  only  a  promise  to  recognize  his  son  in  com- 
mon with  the  rest  of  his  family,  but  the  promise  was  loose 

IJ)  Neville  v.  Wilkinson,  1  Bro.  0.  C,  543.  (n)  Per  Lord  Cranworth,  L.  J.,  in  Money- 
See,  also,  Gale  v  Lindo,  1  Vern.,  475;  Scott  v.  Jorden,  2  De  G.  M.  &  G.,  332.  See,  too, 
V.  Scott,  1  Cox,  366;  and  at  law,  Monteflori  v.  Alderson  v.  Mad(Jison,  5  Ex.  D.,  where  Ste- 
Montefiori,  1  VVm.  Black.,  363;  Pickard  v.  plien,  J.,  lucidly  classified  the  different  kinds 
Sears,  6  A.  &  E.,  469;  Gregg  v.  Wells,  10  A.  of  false  representations. 
&  E.,  90;  Freeman  v.  Cooke,  2  Ex.,  654;  How-  (o)  In  Maunsell  v.  White,  4  H.  L.  C,  1056. 
ard  V.  Hudson,  2  El.  &  Bl.,  1 ;  Foster  v.  Men-  (;;)  Skidmore  v.  Bradford,  L.  K.  8  Eq.,  134; 
tor  Life  Assurance  Co.,  3  id.,  48.  cf.  Ridley  v.  Ridley,  34  Beav.,  478. 

(m)  Bold  V.  Hutchinson,  20    Beav.,  250;  (q)  Randall  v.  Morgan,  12  Ves.,  67.    See 

affirmed  5  De  G.  M.  &  G.,  558,  on  different  the  observations  on  this  case  of  Lord  St. 

grounds.    See,   also,  Jameson  v.  Stein,  21  Leonards  in  Mounsell  v.  White,  IJon.  &  L., 

Beav.,  5.  567. 


148        FRY  ON-  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

and  vague,  and  defined  no  sum,  Stuart,  V.  C,  dismissed  a 
bill  filed  by  the  son,  but  under  the  circumstances  directed 
the  costs  to  be  paid  out  of  the  father  s  estate,  (r)  But,  on  the 
other  hand,  where  on  the  treaty  for  a  marriage  the  father  of 
the  intended  Avife  wrote  to  the  intended  husband,  "At  my 
(\ecease  she  (the  intended  wife)  shall  be  entitled  to  her  share 
in  whatever  property  I  may  die  possessed  of,"  Lord  Rom- 
illy,  M.  R.,  held  that  this  amounted  to  a  contract  binding 
on  the  father  and  his  estate,  and  was  not  too  vague  to  be 
enforced. {s)  ' '  When, ' '  said  his  lordship, {t)''a  man  makes 
a  solemn  engagement  upon  an  important  occasion,  such  as 
the  marriage  of  his  daughter,  he  is  bound  by  the  promise  he 
then  makes.  If  he  induce  a  person  to  act  upon  a  particular 
promise  with  a  particular  view  which  affects  the  interests  in 
life  of  his  own  children  and  of  the  persons  who  become 
united  to  them,  this  court  will  not  permit  him  afterwards  to 
forego  his  own  words,  and  say  that  he  was  not  bound  by 
what  he  then  promised.  It  is  upon  these  principles  that  the 
court  has  acted  in  aU  such  cases ;  it  exercises  its  jurisdiction 
for  the  enforcement  of  the  truth,  and  makes  a  man' s  acts 
square  with  his  words,  by  compelling  him  to  perform  what 
he  has  undertaken." 

§  301.  Where  the  representation  is  merely  of  what  the 
person  intends  to  do,  or  the  promise  is  one  for  the  perform- 
ance of  which  the  person  making  it  refuses  to  contract,  and 
insists  that  the  recipient  shall  rely  on  his  honor,  the  engage- 
ment is  of  a  merely  honorary  nature,  and,  therefore,  not 
enforceable  by  the  court.  (2^)  In  one  case  the  guardians  of 
a  young  lady,  who  was  a  minor,  objected  to  her  marriage 
until  a  suitable  settlement  should  be  made  on  behalf  of  her 
intended  husband ;  his  uncle,  from  whom  he  had  expecta- 
tions, having  been  previously  consulted  on  the  matter,  was 
informed  of  this  resolution ;  in  reply  to  which  he  wrote  to 
his  nephew,  "  My  sentiments  respecting  you  continue  un- 
alterable ;  however,  I  shall  never  settle  any  part  of  my  prop- 
erty out  of  my  power  so  long  as  I  exist.  My  will  has  been 
made  for  some  time,  and  I  am  confident  that  I  shall  never 
alter  it  to  your  disadvantage.     I  repeat  that  my  Tipj)erary 

(r)  Kay  v.  Crook,  3  Sm.  &  G.,  407.  (m)  Cf.  Lord  Walpole  v.  Lord  Or  ford,  3 

(»)  Laver  v.  Fielder,  32  Beav.,  1.    See,  too,  Ves.,  402;  Infra,  §  571.    See,  too,  per  Stephen, 

Coverdale  v.  Eastwood,  L.  K.  15  Eq.,  121.  J.,  In  Alderson  v.  Maddison,  5  Ex.  D.,  296, 

(0  32  Beav,  12.  301. 


NON-CONCLUSION    OF  THE   CONTRACT.  149 

estate  will  come  to  you  at  my  death,  unless  some  unforeseen 
occurrence  should  take  place."  The  letter  further  alleged 
that,  as  he  had  never  settled  anything  on  any  of  his  nephews, 
his  doing  so  in  this  case  would  cause  jealousy  in  the  family; 
this  letter  the  writer  desired  might  be  communicated  to  the 
young  lady's  guardians.  It  was  held  that  the  intention  of 
the  uncle  was  not  to  settle  his  i^roperty,  and  that,  therefore, 
the  letter  could  not  be  treated  as  a  contract.  (■») 

§  303.  The  same  principle  governed  the  decision  of  the 
case  of  Money  v.  Jorden.(w;)  The  facts  of  the  case  were, 
shortly,  that  B.  was  under  a  bond  for  the  payment  of  a  sum 
of  money  to  A. ;  that  B.  being  about  to  marry,  A.  said  she 
should  never  distress  him  about  the  bond,  that  she  had 
given  it  up,  and  would  never  enforce  it ;  but  on  l)eing  re- 
quested to  give  up  the  bond,  she  declined  to  do  so,  saying 
that  she  would  be  trusted,  and  that  B.  might  rely  on  her 
word.  B.  married,  and  A.  subsequently  having  put  the 
bond  in  suit,  B.  sought  the  interference  of  the  court  by 
injunction.  The  representations  in  question  Avere  held 
to  be  binding  by  Lord  Romilly,  M.  E.,  in  the  first  instance,' 
by  Knight  Bruce,  L.  J.,  on  appeal,  and  by  Lord  St.  Leon- 
ards in  the  House  of  Lords,  whilst  the  contrary  was  ulti- 
mately decided  by  a  majority  in  the  House,  consisting  of 
Lords  Cran worth  and  Brougham.  The  question  was,  in  a 
considerable  part,  one  of  evidence.  But  Lords  Cranworth 
and  St.  Leonards  differed  as  to  the  effect  of  a  representation 
of  intention,  the  latter  holding  such  to  be  binding,  and  the 
former  not.(a;) 

§  303.  On  the  same  principle,  where  a  settlement  was 
not  ready  at  the  time  of  the  marriage,  and  the  lady  married 
on  the  husband's  engagement  in  honor  that  she  should  have 
the  same  advantage  of  the  agreement  as  if  it  were  in  writing 
and  duly  executed,  the  court  refused  to  interfere,  as  the  en- 
gagement was  merely  honorary. (y)  And,  again,  where  let- 
ters were  sent  containing  what  only  amounted  to  a  general 
assurance  that,  if  a  tenant  acted  to  the  satisfaction  of  his 
landlord,  he  would  deal  honorably  and  handsomely  with 

(V)  Maunsell  v.  White,  1  Jon.  &  L.,  530;  Cross  v.  Sprlgg.t!  Ha  ,  6:>3 ;  I.aver  v.  KJehler. 

affirmed  4  H.  L.  C.  1039.  32  Beav..  1 ;  Covenlalo  v.  Eiistwooil,  L  R.  15 

(to)  15  Beav.,  372;  2  De  G.  M.  &  G.,  318;  5  Eq..   121 ;   Loffus  v.  Maw,  3  Giff.,  5'.f2,  and 

HLC,185  Infra.  §§311.  312 

(a;)  With  regard  to  the  force  of  an  expres-  (j/>  Viscountess  Montacute  v.  Maxwell,  1 

elon  of  intention,  see,  besides  tlie  cases  above  P.  Wms.,  618. 
stated,  Norton  v.  Wood,  1  K.  &  My.,  178; 


150        FKY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

him  in  regard  to  renewing  his  lease,  this  assurance  was  dis- 
criminated irom  a  matter  of  contract,  and  was  not  enforced 
by  the  court.  (2)  ^ 

§  30-1.  The  circumstances  of  the  case  of  Morehouse  v. 
Colvin  {a)  \vBve  these :  A  testator  who  liad,  by  his  will,  be- 
queathed £12,500  to  his  daughter,  wrote  a  letter  to  an  old 
friend  of  his  in  India,  to  whom  the  young  lady  was  con- 
signed, and  therein  stated  that,  in  case  of  her  marrying 
with  his  approbation,  her  husband  should  have  £2,000  on 
the  marriage,  and  continued,  ' '  nor  will  that  be  all :  she  is 
and  shall  be  noticed  in  my  will ;  but  to  what  further  amount 
I  cannot  precisely  say,  owing  to  the  present  reduced  and 
reducing  state  of  interest,  which  puts  it  out  of  my  power 
to  determine  at  present  what  I  may  have  to  dispose  of." 
The  substance  of  these  terms  was  communicated  to  the  in- 
tended husband ;  the  testator  revoked  his  will,  and  made 
another,  omitting  the  legacy,  and  giving  his  daughter  a 
residuary  and  contingent  interest;  Lord  Romilly,  M.  R., 
and  afterwards  the  court  of  appeal  in  chancery,  held  that 
there  was  no  contract  which  could  be  enforced. 

§  305.  Where,  subsequently  to  representations  of  the 
sort  which  we  have  been  considering,  a  settlement  has  been 
executed  making  a  ^jrovision  but  taking  no  notice  of  the 
subject  of  the  representations,  a  presumption  arises  that 
the  settlement  contains  the  whole  contract,  and  this,  if  not 
rebutted,  is,  of  course,  a  bar  to  any  relief  on  the  repre- 
sentations. (Z^) 

§  306.  The  same  result  more  clearly  follows  where  not 
only  is  there  a  settlement  which  is  silent  as  to  the  promise, 
but  where  it  appears  that  the  marriage  was  determined  on 
long  before  the  promise.  There  it  is  evident  that  the  prom- 
ise did  not  induce  the  marriage,  (c) 

§  307.  We  will  now  proceed  to  consider  the  cases  in 
which  a  representation,  followed  by  conduct  of  the  party 
to  whom  it  is  made,  has  been  held  to  be  binding. 

§  308.  These  cases  have,  for  the  most  part,  turned  upon 
representations  made  in  the  course  of  marriage  treaties,  fol- 
lowed  by  marriage  made  on  the  faith  of  such  representa- 
tions— a  class  of  cases  in  which  the  court  is  inclined  to 

(s)  Price  v.  Assheton,  1  Y.  &  C.  Ex.,  441.       Sands  v.  Soden,  31  L.  J.  Ch.,  870;  Re  Bad- 

(«)  15  Beav.,  341.  cock,  29  W.  R.,  278. 

(b)  Loxley  v.  Heath,  1  De  G.  F.  &  J.,  489;       (cj  Goldicutt  v.  Townsend,  28  Beav.,  445. 


NON-COXCLUSION    OF   THE   CONTRACT.  151 

attacli  more  than  ordinary  weight  to  the  language  of  the 
one  party,  when  it  is  calculated  to  convey  a  false  impres- 
sion to  the  other.  (fZ) 

§  309.  Where  the  proposal  is  in  writing,  the  marriage, 
and  other  acts,  are  relied  on  only  as  evidence  of  acceptance ; 
but  where  the  proposal  has  been  verbal,  the  acts  must  be 
relied  on  also  as  constituting  a  case  of  part  performance, 
for  which  purpose  marriage  alone  is,  from  the  words  of  the 
Statute  of  Frauds,  not  sufficient.  The  cases  on  part  per- 
formance in  connection  with  such  contracts,  (e)  and  also  of 
marriage  in  fraud  of  a  parol  contract,  (/)  are  represectively 
considered  elsewhere. 

§  310.  The  x)rinciple  of  the  cases  now  under  discussion 
is  established  by  several  old  decisions,  to  which  it  will  be 
sufficient  to  refer  (r/)  before  considering  the  more  recent 
cases. 

§  311.  In  Luders  v.  Anstey,(^)  a  husband,  before  mar- 
riage, wrote  a  letter  proposing  a  settlement  of  the  lady's 
fortune,  securing  certain  benefits  to  the  children  of  the 
lady's  first  marriage.  Shortly  afterwards  the  marriage 
took  place,  and  Lord  Loughborough  held  that  the  husband 
jwas  bound  by  the  letter,  though  bonds  to  execute  a  settle- 
ment had  subsequently  been  entered  into,  also  securing 
benefits,  but  different  ones,  to  the  same  children.  "There 
is  no  locus  poenitentice,''  said  his  Lordship,  "in  this  case  ; 
and  I  should  require  a  positive  distinct  dissent ;  and  that 
could  not  be  evidenced  by  anything  but  an  actual  settle- 
ment before  marriage,  varying  from  that.  In  Saunders  v. 
Cramer, (/)  a  paper  signed  by  a  lady,  expressing  her  inten- 
tion of  leaving  her  granddaughter  a  certain  sum/ to  be  se- 
cured by  a  bond,  which  offer  was  to  be,  and  was,  in  fact, 
communicated  to  the  intended  husband  of  the  young  lady, 
and  was  followed  by  a  marriage,  was  held  a  binding  pro- 
posal. The  mention  of  the  bond  went  to  show  that  it  was 
intended  to  be  binding  on  the  party  making  it. 

§  312.  In  De  Beil  v.  Thompson, (,;)  in  written  proposals 
made  on  the  marriage  treaty  the  father  expressed  that  he 
"intended  to  leave  his  daughter  a  further  sum  of  £'10,000 

(d)  Per  Lord  St.  Leonards  in  Maunsell  v.    ford  v.  Fotherley.  2  Id.,  32-2;  Ilalfpeniiy  v. 
White,  1  Jon.  &  L.,  563.  Ballet  Id..  373;  Cookcs  v    MascdU.  Id..  200. 

(e)  See  infra.  §593  etseq.  (h)  4  N  es.,  .im,  b.  e...  a  m.,  .w. 
{/)  See  intra,  §  553.                               _     ,  (•)  3  Dr.  &  War.,  87. 

(g)  Moorev.  Hart.l  Vcrn.,110,-201 ;  Wank-       O)  3Beav.,4G'J. 


152        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

in  his  will,  to  be  settled  on  lier  and  her  children,  the  dispo- 
sition of  which,  supposing  she  had  no  children,  to  be  pre- 
scribed by  the  will  of  her  father."  This  was  held  to  create 
an  obligation.  These  proposals  were  made  subject  to  re- 
vision ;  but  it  was  held  that  that  power  was  determined  by 
their  acceptance  by  the  intended  husband,  and  the  marriage 
with  the  father's  consent.  This  decision  of  Lord  Langdale, 
M.  R.,  was  affirmed  by  Lord  Cottenham,(A-)  and  afterwards 
by  the  House  of  Lords.  (Z) 

§  313.  In  Montgomery  v.  Ileilly,(/?^)  the  eldest  son  came 
into  estates,  subject  to  a  jointure  to  his  mother  and  portions 
to  his  brothers  and  sisters,  and  carried  on  a  correspondence 
with  a  friend  of  the  family  with  a  view  to  the  increase  of 
these  charges,  and  ordered  the  payment  ©f  the  increased 
jointure  and  interest  on  the  increased  portions.  On  the 
faith  of  a  representation  made  on  the  strength  of  these  acts 
by  the  family  friend,  a  daughter  married ;  the  interest  on 
the  increased  portion  was  continued  to  be  paid  to  the 
daughter,  and  the  agent's  accounts  in  which  these  payments 
were  stated  passed ;  and  the  eldest  son  took  possession  of 
some  property  under  the  arrangement  with  his  brothers  and 
sisters,  to  which  he  would  not  otherwise  have  been  entitled. 
The  House  of  Lords  decided  that  there  was  a  contract  bind- 
ing on  the  eldest  brother,  and  specifically  enforced  it. 

§  314.  In  Prole  v.  Soady,(7i)  the  court,  notwithstanding  a 
considerable  conflict  of  evidence,  came  to  the  ccnclusion 
that  previously  to  and  in  contemplation  of  the  marriage  of 
the  plaintiff  s  father  and  mother,  the  natural  father  of  the 
lady  had  represented  to  the  intended  husband  and  to  other 
persons  that  a  certain  estate  of  his  in  Scotland  and  a  sum 
of  105,000  sicca  rupees  were  settled  by  him  as  a  provision 
for  his  daughter  and  her  children,  and  that  the  marriage 
was  contracted  in  a  confidence  in  that  representation.  It 
was  part  of  the  defendant's  case  that  at  the  date  of  the 
marriage  there  w^as  an  existing  testamentary  settlement  of 
the  property  in  question  in  favor  of  the  lady  ;  but  the  court 
held  that  such  an  instrument,  if  it  existed,  was  made  irre- 
vocable by  the  representations  of  the  father,  and  it  gave  the 
plaintiff  relief  on  the  ground  of  the  representation  made. 

(*)  12  01.  &  Fin,  61,  n.  (m)  1  Bll.  (N.  S  ),  364;  S.  C,  1  Dow  (N.  8.), 

(0  12Cl.&Fin.;  46»«6n<m».  Hammersleyv.    62. 
DeBlel.  (n)  2Giff,,l. 


NON-CONCLUSION   OF  THE   CONTRACT.  153 

And  in  a  later  case  the  same  judge  (Stuart,  V.  C.)  held  that 
a  gift  made  by  a  codicil  in  pursuance  of  a  promise  by  an 
uncle  to  his  niece,  on  the  faith  of  which  she  altered  her 
position  in  life  and  continued  to  act  as  his  caretaker,  be- 
came irrevocable  by  force  of  the  promise  and  conduct. (o) 
In  Coverdale  v.  Eastwood  (p)  the  contract  was  contained  in 
letters,  and  the  only  serious  question  was  one  of  construc- 
tion. 

§  ttl5.  The  representations  need  not  be  made  by  the  x^er- 
sons  most  immediately  interested  in  the  marriage  treaty. 
In  one  case  a  legatee  on  his  marriage  assigned  part  of  his 
legacy  to  the  trustees  of  his  settlement,  and  covenanted  to 
pay  the  amount  by  installments.  It  was  proved  that  the 
marriage  was  contracted,  and  the  settlement  made  on  the 
faith  of  representations  by  the  executor  that  the  legacy 
was  substantial  and  safe  and  would  be  paid  though  at  a 
future  time.  The  estate  of  the  testator  proving  insufficient 
to  pay  the  legacies,  it  was  held  that,  by  force  of  the  repre- 
sentations, the  estate  of  the  executor  was  liable  for  the 
amount  of  the  legacy. ($). 

§  316.  The  doctrine  in  question  seems  to  have  been  car- 
ried to  its  fullest  limits  in  the  case  of  Piggott  v.  Stratton.(r) 
The  defendant  Stratton  was  lessee  for  a  long  term  of  plots 
A,  B,  and  C.  The  lease  contained  a  covenant  that  any  new 
houses  should  be  detached  and  separated  from  one  another 
by  an  open  space  of  not  less  than  thirty  feet.  Plot  C  lay 
between  B  and  the  sea.  The  defendant  Harbour,  under 
whom  the  plaintiff  claimed  as  assign,  negotiated  with  Strat- 
ton for  an  under-lease  of  part  of  B,  and  Stratton  in  answer 
to  a  question  stated  that  he  could  not  build  closer  than 
thirty  feet  because  the  lease  forbad  him,  and  Harbour  swore 
that  thereupon  he  was  induced  to  take  the  land,  and  further 
that  in  order  to  satisfy  himself  he  asked  for  and  was  shown 
a  draft  of  the  lease.  An  under-lease  was  executed  contain- 
ing covenants  referring  to  the  original  lease.  The  original 
lease  was  surrendered,  and  a  new  lease  granted  with  differ- 
ent covenants,  and  Stratton  the  lessee  proposed  to  build  so 
as  not  to  leave  the  thirty  feet  space.  Lord  Hatherley  (then 
Wood,  V.  C.)  held  that  the  covenants  in  the  under-lease  did 

(o)  Loffu8V.Maw,3Giff..59-2;8eeAlderBon       (p)  L.  R.  15  Eq.,  lil.      . 
V. MaddisoD,  5  Ex.  D..  293. 3u0;  i-eversed  in       (?)  Hutton  v.  Kossiter.  <  De  G  »r.  A  G    9. 
C.  A.  W.  N.,  1881,  p.  68.  (r)  Johns.,  314;  6.  C,  1  De  t..  F.  &  J.,  33. 


154        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

not  restrain  this  conduct,  but  that  the  representation  did. 
He  held  it  equivalent  to  a  representation  that  the  lease  was 
an  instrument  by  which  the  property  was  secured  to  the 
purchaser  in  a  course  of  enjoyment,  and  that  to  permit  him 
to  alter  that  course  would  be  to  permit  him  to  derogate 
from  liis  own  grant.  Lord  Campbell  and  Turner,  L.  J.,  held 
that  the  defendant  was  bound  both  by  his  covenants  in  his 
under-lease  and  by  his  representation.  Knight  Bruce,  L.  J., 
held  that  he  was  bound  by  his  covenants,  but  declined  to 
give  any  opinion  on  the  other  point.  It  will  not  escape 
notice  that  in  this  case  the  only  representation  made  was 
one  of  an  existing  fact,  viz. :  the  existence  of  the  lease,  that 
there  was  no  statement  that  the  state  of  things  should  con- 
tinue, or  that  the  lease  should  not  be  surrendered  or  allowed 
to  drop,  and  that  to  infer  from  the  existence  of  a  lease  that 
it  should  never  be  surrendered,  seems,  in  the  absence  of 
express  contract,  a  somewhat  strong  inference.  The  case 
is,  however,  one  of  the  highest  authority. 


INCOMPLETENESS   OF  THE   CONTRACT.  155 


CHAPTER  III. 

OF   THE   INCOMPLETENESvS   OF   THE   CONTRACT. 

§  317.  "Nothing  is  more  established  in  this  court,"  said 
Lord  Hardwicke,(«)  speaking  of  contracts  which  the  court 
will  enforce,  "than  that  every  agreement  of  this  kind  ought 
to  be  certain,  fair  and  just  in  all  its  parts.  If  any  of  those 
ingredients  are  wanting  in  the  case,  this  court  will  not  decree 
a  specific  performance. "  "  I  lay  it  down  as  a  general  propo- 
sition," said  Lord  Rosslyn,(/;)  "to  which  I  know  no  limita- 
tion, that  all  agreements,  in  order  to  be  executed  in  this 
court,  must  be  certain  and  defined  ;  secondly,  they  must  be 
equal  and  fair  ;  for  this  court,  unless  they  are  fair,  will  not 
execute  them  ;  and  thirdly,  they  must  be  proved  in  such 
manner  as  the  law  requires."' 

§318.  In  regard  to  objections  founded  on  the  want  of 
any  of  these  qualities  in  the  contract,  or  on  the  incapacity 
of  the  court  to  perform  the  contract,  or  its  illegality,  the 
court  is,  from  obvious  motives  of  justice,  somewhat  unwil- 
ling to  entertain  the  objection,  when  it  is  made  after  part 
IDerformance,  from  which  the  defendant  has  deiived  bene- 
fits, and  the  plaintiff  cannot  be  fully  recompensed  except 
by  the  performance  of  the  contract  in  S2?ec)e.{c)  When  a 
contract  has  been  partly  executed  by  possession  having  been 
taken  under  it,  the  court,  it  has  been  said,  "will  strain  its 
power  to  enforce  a  complete  performance.  "(rZ)' 

(a)  In  Buxton  v.  Lister,  3  Atk.,  3;G.  See  Ves  Sen., 279;  Franks  v  Martin,  1  K.tcn.309. 
Infra  «  4t<S  (c)  ^ee  §§  S3,  459. 

(b)  'in  Lur<l  Walpo'-c  v.  Lord  Orlmvl,  3  Ves.,  (d)  Parker  v.  Taswcll,  2  De  G.  A  J.,  .V>;i, ...  I. 
42U;  accordingly,  Underwood  v.  Hitlicox,  1 

1  Upon  an  application  to  a  court  of  chancery  for  a  decree  of  specific  perform- 
ance, in  order  to  merit  tlie  interposition  of  its  i)Owers.  tlie  agreement  must  be 
found  to  be  fair  and  equitable,  certain  and  consistent  wilh  pul-lie  ivWiey.  free 
from  fraud  or  surprise,  not  voluntary,  and  just  in  all  lis  parts,  or  at  lea.sl  tend 
to  produce  a  just  end.  Griimii  v.  Frederick  County  Hank.  r.  Odl  vV  .1..  4U; 
Seymour  V.  IJelaneey,  ;]  Cow.,  44o;  Modisett  v.  Johnson.  2  Blaekf.  4.11 ;  Mil- 
lard V.  Ramsdell,  Harrins.  Ch.,  37;i;  Ohio  v.  Hauni.  (J  Ham..  :?s:{.  I  ule.ss  the 
evidence  offered  in  .suppcirt  of  a  contract  be  fully  sutlicienl  and  ample,  a  court 
of  equity  will  not  exercise  it.s  jurisdiction  to  enforce  it.  Colson  v.  Thompson, 
2  Wheat.,  33(5. 

*  Negotiation.^     When  any  part  of  an  agreement  remains  to  be  settled  by 


lo6         FKV  UN  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

§  319.  The  qualities  of  completeness,  certainty  and  fair- 
ness, which  will  be  now  considered,  will  in  great  part  be  best 
explained  by  showing  cases  in  which  they  have  been  con- 
sidered as  being  wanting.  The  qualities  of  completeness 
and  certainty  are  not  perhaps  truly  separable  ;  but  under 
the  former  those  cases  will  be  rather  considered  where  there 
is  the  absolute  want  of  some  term  in  the  contract;  under 
the  latter  head  of  certainty,  those  where  it  is  not  the  entire 
want  of  the  term,  but  the  want  of  sufficient  exactitude  in  it, 
whicli  has  furnished  a  defense  to  a  specific  performance,  (e)' 

g  :j!JO.  It  is  evident  that  incompleteness  may  be  in  the 
contract  itself —in  which  case  there  is  properly  speaking  no 
contract,  or  in  the  evidence — in  which  case  there  is  no  suffi- 
cient memorandum.  But  nevertheless  it  seems  not  incon- 
venient to  consider  these  defects  together. 

§  3S1.  The  time  at  whicli  the  completeness  of  the  contract 
is  to  be  ascertained  was  the  filing  of  the  bill,  and  is  now  the 
commencement  of  the  action  ;  so  that  it  was  not  sufficient 
for  the  purpose  of  obtaining  an  immediate  decree,  to  prove 
that  the  consent  of  a  tenant  for  life,  which  was  essential  to 
the  contract,  was  given  before  the  hearing. (/)  It  is  an 
obvious  principle  of  justice,  that  the  adoption  of  a  contract 
by  a  third  party  shall  not  so  relate  back  as  to  subject  a  party 
•to  legal  proceedings  in  respect  of  its  non-i^erformance,  the 
non-performance  having  at  the  time  been  justifiable. (^) 

§  322.  To  this  principle  there  are  some  exceptions,  or 

(e)  See,  also,  the  cases  stated  Infra,  §  488.       Mann  v.   Waiters,  10  B.  &  C,  626;  Doe  d' 
(/)  Adams  v.  Brooks,  1  Y.  &  C.  C.  C,  627.      Lyster  v.  Goldwin,  2  Q.  B.,  143. 
(g)  Right  V.  Cuthell,  5  East,  491;  Doe  d. 

negotiation,  it  is  incomplete.  Potts  v.  Whitehead,  20  N.  J.  Eq.,  55;  Myers  v. 
Forbes,  24  Md.,  598. 

Incomplete  co7i(raci.]  Where  a  contract  is  incomplete,  specific  performance 
of  it  will  not  be  decreed  if  that  objection  is  raised.  Hopkins  v.  Oilman,  22 
"Wis.,  476;  Madox  v.  McQueen,  8  A.  K.  Marsh.,  400;  Ohio  v.  Baum.  6  Ohio, 
383;  Southern  Ins.  Co.  v.  Cole,  4  Fla.,  359;  Hammer  v.  Eldowny,  46  Pa.  St., 
334;  McKibbin  v.  Brown,  14  N.  J.  Eq.,  13;  Neville  v.  Merchants'  Ins.  Co.,  19 
Ohio,  452;  Johnson  v.  Johnson,  16  Minn.,  512. 

Contract  incompUte  as  to  ti7ne.'\  Where  the  contract  does  not  specify  the  time 
when  it  is  to  be  performed,  or  fix  the  same,  it  is  too  incomplete  to  be  enforced 
at  equity.  Time  being  included  in  the  terms,  may  become  of  the  essence  of 
the  contract.  Potts  v.  Whitehead,  20  N.  J.  Eq.,  55;  Williams  v.  Stewart,  25 
Minn  ,  516;  Baker  v.  Glass,  6  Munf.,  212;  Hoff  v.  Shepherd,  58  Mo.,  242; 
Wiley  V.  Roberts,  31  id.,  212;  see,  however,  Friebert  v.  Burgess,  11  Md.,  452. 

'  Contract  must  he  completely  determined.'\  In  order  that  a  party  shall  be  enti- 
tled to  a  decree  for  the  specific  performance  of  a  contract,  such  contract  must 
have  been  completely  determined,  and  its  terms  definitely  ascertained.  Brown 
V.  Brown,  33  N.  J.  Eq.,  650. 


INCOMPLETENESS    OF  THE   CONTRACT.  157 

apparent  exceptions,  which  it  is  well  briefly  to  notice. 
When  the  contract  is  incomplete  through  the  default  of 
the  defendant,  and  the  incompleteness  is  one  which  can  be 
remedied,  the  court  will  not  refuse  its  aid ;  thus,  where  a 
contract  had  been  entered  into  for  granting  an  annuity  for 
three  lives  to  be  named,  and  the  consideration  had  been 
paid,  but  through  the  defendant's  refusing  to  proceed  the 
lives  had  not  been  named,  the  plaintiff  was  allowed  to  per- 
fect his  contract  by  nominating  three  lives  who  were  in  being 
at  the  time  of  the  contract.  (70'     So  where  the  defendant 
agreed  to  build  a  house  on  the  plaintiff's  land  and  the  plain- 
tiff agreed  thereupon  to  grant  a  lease  which  the  defendant 
agreed  to  accept ;  and  the  defendant  pulled  down  the  old 
house  but  neglected  to  build  the  new  one ;  the  court  held 
that  the  contract  to  accept  a  lease  gave  it  jurisdiction  ;  that 
damages  could  be  awarded  under  Lord  Cairns'  act  for  the 
non-performance  of  the  contract  to  build,  and  that  this  con- 
dition being  thus  satisfied  the  plaintiff  could  have  perform- 
ance of  the  defendant's  contract  to  accept  a  lease. (^) 

§  323.  An  action  may  be  maintained  on  a  contract  where, 
though  some  term  be  not  ascertained,  the  court  has  the 
means  of  ascertaining  it,  on  the  principle  of  the  maxim  id 
cerium  est  quod  cerium  reddi  potesi.  Thus,  in  a  contract 
for  the  sale  of  lands  under  the  lands  clauses  consolidation 
act,  in  which  the  sum  was  not  ascertained,  the  court  decreed 
the  defendants  to  issue  their  warrant  to  the  sheriff  to  sum- 
mon a  jury  to  settle  the  compensation ;  {j)  and  the  same 
principle  is  illustrated  by  the  cases  on  the  requisite  com- 
pleteness as  to  subject  matter  and  price. (/t) 

§  324.  The  necessary  completeness  of  the  contract  may 
be  considered  in  respect  of  (1)  the  subject-matter,  (2)  the 
parties  to  the  contract,  (3)  the  price,  and  (4)  the  other  terms. 
§  3S5.  (1)  Every  valid  contract  must  contain  a  descrip- 
tion of  the  subject-matter  ; '  but  it  is  not  necessary  that  it 

(h)  Pritchard  v.  Ovey,  IJ.  &  W.,  396;  Lord  (j)  Walker  v.  Eastern  Counties  Railway 

Kensington  v.  Phillips,  3  Dow,  61.  Co  ,  6  Ha..  5'Jl     See,  also,  Owen  v.  Thomas, 

(i)  Soamesv.Edge,  Johns. ,669;  Middleton  3  My.&K  ,3.53;  Monro  v.  laylor,  8  lla.,51. 

V.  Greenwood,  2  De  G.  J.  &  S.,  14-2.    Distin-  (fc)  Infra,  §§  328,  335. 
guish  Norrls  v.  Jackson,  1  J.  &  H.,  319. 

•  In  Prater  v.  Miller,  3  Hawks,  628,  it  was  held  that  though  specific  perform- 
ance would  not  be  decreed  of  a  contract  uncertain  in  its  terms,  still,  where  the 
agreement  may  be  made  certain  by  means  of  references  furnished  by  the  con- 
tract, it  will  be  enforced. 

■■^  Befiniteness.']     The  subject-matter  of  a  contract  must  be  defined  with  clear- 


158        FKY  ON  SPECIFIC  PERFORM AXCE  OF  CONTRACTS. 

should  be  so  described  as  to  admit  of  no  doubt  what  it  is  ; 
for  the  itlentity  of  the  actual  thing  and  the  thing  described 
may  be  shown  by  extrinsic  evidence.  This  flows  from  the 
very  necessity  of  the  case  ;  for  all  actual  things,  except  the 
contract  itself,  being  outside  of  and  beyond  the  contract, 
the  connection  between  the  words  expressing  the  contract 
and  tilings  outside  it  must  be  established  by  something 
other  than  the  contract  itself,  that  is,  by  extrinsic  evidence ; 
the  same  rule  is  admitted,  and  from  the  like  necessity,  with, 
regard  both  to  persons  and  things  mentioned  in  wills  ;  {I) 
and  in  the  cases  of  contracts  within  both  the  fourth  and  the 
seventeenth  sections  of  the  Statute  of  Frauds,  parol  evi- 
dence as  to  identity  is  admissible,  (m)  Thus,  for  instance, 
the  expression  "Mr.  Ogilvie's  house,"  was  held  sufficienl, 
and  extrinsic  evidence  was  admitted  to  show  what  house  it 
referred  to.{n)'  In  another  case  a  subject-matter  described 
as  "  the  mill  property,  including  cottages  in  Esher  village," 
was  held  capable  of  identification  by  parol  evidence. (o) 
The  expressions  "this  ]3lace"  (p)  and  "the  lease"  (q)  have 
been  held  sufficient  descriptions  of  the  thing  sold ;  and 
"your  word"  has  been  explained  by  jDarol  evidence  of  a 
IDrevious  conversation,  (r)  So  where  a  contract  referred  to 
another  writing,  parol  evidence  of  the  identity  of  a  certain 
writing  with  that  referred  to  was  admitted  ;  (s)  and  in  an- 
other case  parol  evidence  was  admitted  to  show  the  mean- 
er) See  per  Lord  Cranworth  (then  Rolfe,  B  )  (q)  Horsey  v.  Graham,  L.  R.  5  C.  P.,  9. 
in  Clayton  v.  Lord  Nugent,  13  M.  &  VV.,  207.  (r)  Macdonald  v  Longbottom,  1  El.  &  El., 
(m)  t^arl  v.  liourdillon,  1  C.  B   (N.  S.),  188.    977. 

(«)  Ogilvie  V.  Foljambe,  3  Mer.,  53  (s)  CUnan  v.  Cooke,  1  Sch.  &  Lef.,  21,  33. 

(o)  McMurray  v.  Spicer,L.  R.  5  Eq.,  521.        See  infra,  §  521. 
ip)  Waldron  v.  Jacob,  I.  R.  5  Eq.,  131. 

ncss;  SO  that  the  party  and  the  court  may  know  what  is  contracted  for.  King 
V.  Ruckman,  20  N.  J.  Eq.,  316;  Carr  v.  Passaic  Land  Co.,  22  id.,  35;  Ross  v. 
Baker,  72  Pa.  St.,  18G;  Miller  v.  Campbell,  52  Ind.,  125;  Holmes  v.  Evans,  48 
Miss.,  217;  Bell  v.  Warren,  39  Texas,  10(j;  Lynes  v.  Hayden,  119  Mass.,  482. 

Extrinsic  evidence  may  be  used  to  explain  ambiguous  terms,  or  the  relations 
sustained  towards  each  other  by  parties.  Warring  v.  Ayres,  4.0  N.  Y.,  357; 
Robeson  v.  Horntaker,  2  Green's  Ch.,  60;  Fowler  v.  Redican,  53  111.,  405; 
Mead  v.  Parker,  115  Mass.,  413. 

Example.]  A  bond  for  the  sale  of  real  estate  was  in  every  respect  unobjectiona- 
ble, except  the  description,  which  was  incomplete,  but  consistent  so  far  as  it 
went.  Held,  that  extrinsic  parol  evidence  miglit  be  emploj^ed  to  complete  it, 
if  no  new  description  was  introduced  into  the  contract,  and  the  pleadings  con- 
tained the  necessary  averments.  Torr  v.  Torr,  20  Ind.,  118;  Price  v.  Griffith, 
1  De  G.  M.  &  G.,  80;  King  v.  Wood.,  7  Miss.,  389;  1  Greenlf.  Ev.,  §  287. 

'  Upon  the  same  principle,  specific  performance  of  a  contract  will  not  be  re- 
fused, because  in  the  description  of  the  land  it  omitted  to  state  the  town  in 
which  it  lies,  where  the  description  is  otherwise  rendered  definite.  Robeson  v. 
Horntaker,  2  Green's  Ch.,  60. 


INCOMPLETENESS  OF  THE  CONTRACT.        159 

ing  of  "  £50  more  of  premium,"  and  of  "  the  profit  rent  of 
the  present  tenant."  {t)  A  general  description  of  the  sub- 
ject matter  is  sufficient;  as,  e.  ^.,  "the  Bank  End  estate," 
although  the  contract  itself  may  provide  for  the  parcels 
being  subsequently  defined.  (?^) 

§  3^0.  Where  it  is  necessary  to  call  in  extrinsic  evidence, 
the  connection  of  the  subject-matter  of  the  contract,  and 
the  thing  in  respect  of  which  specific  performance  is  sought, 
must  be  pleaded  and  supported  by  sufficient  evidence. (c) 

§  327.  It  is,  however,  essential  that  the  descrij)tion  of 
the  subject  matter  should  be  so  definite,  as  that  it  may  be 
known  with  certainty  what  the  purchaser  imagined  himself 
to  be  contracting  for,  {w)  and  that  the  court  may  be  able  to 
ascertain  what  it  \s.{x)  And  so  in  a  case  where  there  was  a 
contract  for  the  letting  of  "coals,  etc,"  the  statement  of  the 
subject-matter  was  thought  by  Knight  Bruce,  L.  J.,  insuffi- 
cient, and  specific  performance  was  refused  on  that  amongst 
other  grounds,  (y ) ' 

§  328.  With  regard  to  the  description  of  the  subject- 
matter,  the  maxim  id  cerium  est  quod  cerium  redd  I  potest 
applies.  Thus,  where  the  memorandum  of  the  contract 
contained  no  specific  description  of  the  property  sold,  but 
referred  to  the  deeds  as  being  in  the  possession  of  a  person 
named,  the  court  thought  that  the  property  might  easily  be 
ascertained  before  the  master,  and  held  the  description  of 
the  subject-matter  suflacient.^^")  And,  again,  a  contract 
to  sell  an  estate  within  certain  ascertained  boundaries,  de- 
scribed as  partly  freehold,  and  partly  leasehold,  is  not  void 
for  uncertainty,  because  it  is  a  good  contract  to  sell  the 
vendor's  interest  in  the  property  ;  but  the  purchaser  is  enti- 
tled to  have  it  reduced  to  certainty  by  the  boundary  of  the 
properties  of  different  tenures  being  ascertained,  or  shown 
to  be  capable  of  being  so.  («) 

«)  Skinner  v.  M'Douall,  2  De  G.  &  Sm.,265.  (y)  Price  v.  Griffith,  1  De  G^  M.  AG.,  80. 

(«)  Haywood  V.  Cope,  is  Beav  ,  UO.  See,    also,   Inge    v.    BirmlnKhani,   W  olver- 

(w)  Price  V.  Griffith,  1  De  G.  M.  &  G.,  80.  hampton  and  Stour  \  alley  liailway  Co.,  3 

(?«)  Stewart  V.  Allisiou,  1  Mer.,  26,  33.  De  G.  M.  &  G.,  (>6S. 

(a:)  Kennedy  v.  Lee,  3  Mer.,  441,  451;  per  (5)  Owen  v.  Ihomas.S  My    &  K  ,  353,  cf. 

Lora  Eldon  in  Daniels  v.  Davison,  16  Vea.,  Kay  lor  v.  Goodall,  ^0  "  •  K-.  18-.. 

256  (a)  Monro  v.  Taylor,  8  Ha.,  51. 


'  The  description  of  land,  which  is  the  subject-matter  of  the  contract,  is 
clearly  an  essential  particular,  and,  as  such,  if  indetiuite  to  such  an  extent  as 
to  be  incaoable  of  being  ascertained  by  the  admission  of  extrinsic  evidence, 
goes  to  its' essence  and  avoids  the  obligations  of  the  agreement.  McMurtrie  v. 
Bennett,  Barring.  Ch.,  13-1. 


160        FRY  ON  SPECIFIC  PERFORMAKCE  OF  CONTRACTS. 

ij  3*^1>.  So  tlie  uncertainty  of  description  of  the  subject- 
matter  may  ])e  got  over  by  the  election  of  one  party  to  the 
contract,  wliere  the  effect  of  the  contract  is  to  give  such  a 
riglit  of  election.  Thus,  where  a  contract  was  made  by  the 
defendant  to  sell  to  the  plaintiff  for  the  purpose  of  a  church- 
yard so  much  land  as  was  necessary  on  the  north  side  of  the 
church,  and  the  plaintiff  obtained  the  sanction  of  the  proper 
authorities  to  the  consecration  of  three  quarters  of  an  acre 
of  land  adjoining  the  north  side  of  the  existing  enclosure  of 
the  church  and  applied  to  the  defendant  to  convey,  it  was 
held  that  the  plaintiff  being  the  person  to  do  the  first  act 
under  the  contract  had  a  right  of  election,  and  that  if  other- 
wise there  was  uncertainty  of  description  he  had  sufficiently 
ascertained  the  land  to  be  conveyed,  {b)  A  similar  decision 
was  pronounced  in  a  case  where  the  difficulty  arose  on  a 
contract  to  let  a  glebe  "except  thirty-seven  acres,"  and  it 
was  held  that  the  right  of  election  was  with  the  lessee  as 
the  person  who  had  the  first  act  to  do.(c)  With  these  cases 
may  be  compared  the  cases  on  executory  contracts  for  the 
sale  of  goods  not  specified,  where  the  appropriation  by  the 
party  entitled  to  elect  converts  the  executory  contract  into 
an  actual  sale  and  passes  the  property  to  the  vendee.  (^) 

§  330.  (2)  The  contracting  parties  must  appear  in  the 
contract,  or  the  memorandum  of  it,  in  order  to  constitute  a 
binding  contract  ;(e)'  but  they  may  so  appear  either  by  name 
or  by  description,  or  by  reference  sufficient  to  ascertain 
their  identity. (/)  Where  the  defendant  made  a  written 
offer  to  take  a  lease,  beginning  "  Sir,"  but  without  address, 
and  the  plaintiff's  agent  wrote  an  acceptance,  but  there  was 
no  document  signed  by  the  defendant  showing  the  intended 
lessee's  name,  it  was  held  that  there  was  no  w^ritten  con- 
tract, (p') 

(6)  Rumble  V.  Heygate,  18  W.  R  ,  749.  v.  Whitton.lH.  L.C.,333;  Williams  v.  Lake, 

(c)  Jenkins  v.  Green,  27  Beav.,  437.  3  El.  &  El..  349.    Ct.  Skelton  v.  Cole,  1  De  G. 

(d)  See  the  cases  colKcted  in  Benjamin  on    &  J.,  5S7,  596. 

Sales,  Book  II,  oh.  5.  (/)  Potter  v.  Duffield,  L.  R.  18  Eq  ,  4. 

(e)  Champion  v.  Plummer,  1  N.  R.,  253;        (g)  Williams  v.  Jordan,  6  Ch.  D.,  517. 
Warner  v.  WiUington,  3  Brew.,  523;  Squire 

*  It  is  not  however,  necessary  that  in  all  cases  the  names  of  both  parties  to 
an  instrument  appear  upon  its  face,  in  order  to  obtain  relief  in  equity.  Thus, 
where  the  owner  of  laud  transmitted  to  a  proposed  purchaser  a  memorandum 
of  an  agreement  to  purchase,  with  a  request  that  he  would  sign  it  in  case  he 
wished  to  purchase,  which  was  signed  accordingly,  it  was  held  that  it  was 
binding  upon  both  parties,  though  it  contained  no  promise  to  sell,  and  was  not 
signed  by  the  vendor.    Butler  v.  O'Hear,  1  Dessau.,  383. 


INCOMPLETENESS  OF  THE  CONTRACT.        161 

§  331.  The  contracting  parties  may  be  indicated  by  de- 
scription instead  of  by  name,  provided  the  description  is 
sufficient  to  jireclnde  any  fair  dispute  as  to  the  identity  ;(/) 
or,  in  other  words,  is  certain  within  the  legal  maxim,  id 
certum  est  quod  certum  reddi  potest  ;{h)  and  provided  this 
description  is  not  by  reference,  but  to  the  contract  itself. 
"It  is  scarcely  possible,"  said  Lord  Romilly,  M.  R.,(/)  "to 
look  at  an  auction  list  without  seeing  property  sold  by  a 
mortgagee,  or  by  executors,  or  by  trustees,  without  the 
name  being  disclosed,  and  bought  by  somebody  whose  name 
is  not  given  until  the  conveyance  is  prepared.  It  is  the 
ordinary  practice." 

§33^.  "Your  lordships,"  said  Earl  Cairns,  addressing 
the  House  of  Lords,  "have  frequently  seen  conditions  of 
sale  not  merely  by  auction  but  by  private  contract,  in  which 
it  is  stated  that  the  sale  is  made,  sometimes  by  the  owners, 
and  sometimes  by  the  mortgagees^  and  a  form  of  contract  is 
annexed  in  which  an  agent  signs  for  the  vendors,  and  no 
other  specification  ui)on  the  vendors'  part  is  inserted,  and  I 
never  heard  up  to  this  time  that  a  contract  under  those  cir- 
cumstances was  invalid.  In  point  of  fact,  my  lords,  the 
question  is,  is  there  that  certainty  which  is  described  in  the 
legal  maxim  id  certum  est  quod  certum  reddi  potest.  If  I 
enter  into  a  contract  on  behalf  of  my  client.,  on  behalf  of 
Tnj  principal,  on  behalf  of  mj  friend,  on  behalf  of  those 
whom  it  may  concern,  in  all  those  cases  there  is  no  such 
statement,  and  I  apprehend  that  in  none  of  those  cases 
would  the  note  satisfy  the  requirements  of  the  Statute  of 
Frauds.  But  if  I,  being  really  an  agent,  enter  into  a  con- 
tract to  sell  Blackacre,  of  which  I  am  not  proprietor,  or  to 
sell  the  house  No.  1,  Portland  Place,  on  behalf  of  the  owner 
of  that  house,  there,  I  apprehend,  is  a  statement  of  matter 
of  fact,  as  to  which  there  can  be  perfect  certainty,  and 
none  of  the  dangers  struck  at  by  the  Statute  of  Frauds  can 
arise. "(,/) 

§333.  In  one  case  already  referred  to,(^')  the  sale  was 
stated  to  be  by  direction  of  the  executors  of  Admiral  F., 

(/)  Potter  V.  DiiffieUl,  L.  R.  18  Eq.,  4.  U)  Rossiter  y.  Miller,  3  App.  C,  1140.  The 

(h)  Rossiter  V.  Miller,  5  Ch.  D.,643;  3  App.  Italics  are  not  in  the  report.          ^    t>  p  ir 

C    1124   1140  (*)  Hoo«i  "^^  J^'^""^^  BarruiKton,  L.  R.  6  Eg., 

Ti)  Hood  v'.  Lord  Harrington,  L.  R.  6  Eq.,  218.    See.  too,  Towle  v.  Topham.  37  L.  T., 

218.    See,  too,  Bourdlllon  v.  Collins,  19  W.  308;  Webb  v.  Kirby,  3  Sm.  &(:r.,337. 

B.,  556. 

11 


162        FRY  ON  SPECIFIC  PEKFORMANCE  OF  CONTRACTS. 

and,  in  another, (Z)  the  vendor  was  stated  to  be  a  trustee 
selling  under  a  trust  for  sale  ;  and  in  each  case  the  descrip- 
tion was  held  sufficient.  Again,  where  the  contract  stated 
the  sale  to  be  by  direction  of  the  proprietor,  that  was  held 
to  be  a  sufficient  description.  (77i)  In  another  case,  where 
property  was  sold  by  ten  persons  incorporated,  who  worked 
the  property  in  the  name  of  a  company,  it  was  held  that  the 
description  "  the  vendors"  was  enough,  because  it  appeared 
from  the  conditions  of.  sale  and  memorandum  of  the  con- 
tract, that  the  vendors  were  in  possession;  that  the  abstract 
would  be  an  abstract  of  the  company' s  title,  and  that  it  was 
thfi  interest  of  the  company  which  was  being  sold.(72,) 

§  JI34.  But  where  the  contract  did  not  disclose  the  ven- 
dor s  name,  but  stated  the  auctioneer's  name,  and  the  auc- 
tioneer signed  the  contract  as  confirming  it  "on  behalf  of 
the  vendor,"  the  memorandum  was  held  insufficient,  because 
the  question  who  sold  the  estate  (?'.  e.,  the  question  of  the 
contract)  was  left  to  be  decided  by  parol  evidence,  (o) 

§  335.  (3)  In  all  cases  of  sale  it  is  evident  that  price  is  an 
essential  ingredient  of  the  contract,  and  that  where  this  is 
neither  ascertained  nor  rendered  ascertainable,  the  contract  is 
void  for  incompleteness,  and  incapable  of  enforcement.  (^)' 
Accordingly  where  A.  agreed  to  sell  an  estate  to  B.  for 
£1,500  less  than  any  other  purchaser  would  give,  the  con- 
tract was  held  void  ;  for  if  the  estate  was  not  to  be  sold  to 
any  other  purchaser  than  B.,  it  was  impossible  to  know 
what  such  a  purchaser  would  give  for  it.  {q)  So,  again,  where 
there  was  a  contract  to  sell  at  a  price  to  be  fixed  by  two 
surveyors,  and  they  made  their  valuation,  but  that  did  not 
sufficiently  and  finally  ascertain  the  price,  specific  perform- 
ance was  refused  ;(r)  and  the  like  was  the  result  of  a  similar 

(l)    Catling  V.  King-,  5  Ch.  D.,  660.  (o)  Potter  v.  Diiffield,  L.  R.  18  Eq.,  4. 

(7M).Sale  V.  Lambert,  L.  It.  18  Kq.,  1.    See,        (p)  Elmore  v.  Kingscote,   5  B.  &  C,  583; 

too,  Robsiter  V.  Miller,  5Ch.  I>.,648;  3  App.,  Goodman  v.  Griffiths,  1  H.  &  N.,  574.    Con- 

C,  1124;  Beerv.  London  and  Paris  Hotel  Co.,  sider  Langstaff  v.  Nicholson,  25  Beav.,  160. 
L.  K.  20  Eq  ,  412;  and  Thomas  v.   Brown,  1        (q)  Bromley  v.  Jeflferies,  2  Vern.,  415. 
Q.  B.  D  ,  714.  (r)  Hopcraft  v.  Hickman,  2  S.  &  S.,  130. 

(n)  Commins  v.  Scott,  L.  R.  20  Eq.,  11. 

'  Price  must  be  fixed.]  A  contract  will  not  be  specifically  enforced  unless  the 
price  is  fixed.     Darby  v.  Whitaker,  4  Drew,  134;  Graham  v.  Call,  5  Munf.,  396. 

Contract  cannot  be  changed.]  A  contract  cannot  be  changed,  and  then  en- 
forced, even  by  a  court  of  equity.  Valetti  v.  White  Water  Canal  Co.,  4 
McLean,  192;  Cassady  v.  Woodbury,  13  Iowa,  113;  Haskell  v.  Allen,  23  Me., 
44b';  Gray  v.  Tubbs,  43  Cal.,  359;  Philadelphia  R.  R.  Co.  v.  Lehigh  Co.,  36  Pa. 
St  ,  2u4 


INCOMPLETENESS  OF  THE  CONTKACT.        103 

case,  where  the  valuation  was  such  as  the  court  could  not 
act  on,  by  reason  of  circumstances  of  great  imi)ropriety  on 
the  part  of  one  of  the  valuers,  and  the  valuation  being  based 
on  an  erroneous  view  of  the  facts.  (5) 

§  336.  It  is  not,  however,  necessary  that  the  contract 
should  in  the  first  instance  determine  the  price. (^)  It  may 
either  appoint  a  way  in  which  it  is  to  be  determined,  or  it 
may  stipulate  for  a  fair  price. 

§  337.  Where  the  contract  appoints  a  way  of  detennin- 
ing  the  price,  the  courts  have  in  some  cases  deemed  that 
way  essential ;  in  other  cases  they  have  deemed  it  non- 
essential,, and  have  treated  the  contract  as  essentially  one  to 
sell  at  a  fair  price.  In  all  cases  where  the  princi23al  subject 
of  the  contract  is  to  be  valued  in  a  specified  manner,  the 
manner  has,  it  is  believed,  been  held  essential  •,{u)  the  man- 
ner has  often  been  held  non-essential  where  it  is  aj^plied 
only  to  an  incident  to  the  main  subject,  as  timber  to  land, 
fixtures  to  a  house,  or  plant  to  a  business. 

§  338.  Where  the  contract  specifies  a  way  of  ascertaining 
the  price  which  is  essential,  the  contract  is  conditional  till 
the  ascertainment,  and  is  absolute  only  when  the  price  has 
been  determined.  In  case  of  default  in  this  respect  the  con- 
tract remains  imperfect,  and  incapable  of  being  enforced ; 
for  the  court  will  never  direct  the  payment  of  such  a  sum 
as  A.  may  fix.(«) 

§  339.  If  the  contract  be  between  A.  and  B.  to  sell  and 
buy  at  such  a  price  as  valuers  to  be  named  by  them  shall 
fix,  it  seems  that  either  A.  or  B.  may  refuse  to  name  a 
valuer,  and  the  contract  will  remain  incapable  of  completion 
without  any  liability  on  the  part  of  the  refusing  party,  (•zo) 
But  if  the  contract  between  A.  and  B.  be  to  sell  and  buy  at 
such  a  price  as  C.  shall  fix,  neither  A.  nor  B.  can  rightfuMy 
prevent  C.'s  determination  and  the  comx)letion  of  the  con- 
tract;  and  it  is  presumed  that  an  action  might  be  main- 
tained for  such  prevention.  (^)  ^^  Act  us  inceplus,''  says  one 
of  Lord  Bacon's  maxims, (2/)  ^^cujus  perfedio  pendet  ex 
xoluntate  parti um^  revocar I  potest ;  si  autem  pendet  ex  riol- 

(s)  Chichester  v.  Mclntyrc,  4  Bli.  (N.  S.)i  419-    Consider  Baker  v.  Metropolitiin  Kall- 

78.  way  Co.,  31  Beav.,  504. 

(t)  See  Loii-lon  Guaraatic  Co.  v.  Fearnley,  (w)  See  as  to  the  French  law  on  this  point, 

5  A  pp.  C  ,  9-20.  TroplonK.  De  la  Vento,  §  157. 

(u)  Millies  V.  Gerv,  14  Ves.,  400.  408  (x)  Smith  v.  Petera,  L.  K.  20  £q.,5n,  Infin, 

(«)  Uarby  v.  Whitak.  r,  4  Drew.,  134;  Til-  §343. 

lett  V.  Charing  Cross  Bridge  Co. ,  26  Beav.,  (y)  No.  20. 


164        FKY  OX  SPECIFIC  PEEFORMANCE  OF  CONTRACTS. 

vn tate  terticc  personcB  ml  ex  contingently  non  potest y  One 
of  his  illustrations  is  this :  "  If  I  contract  with  you  for  cloth 
at  such  a  price  as  J.  S.  shall  name,  then  if  J.  S.  refuse  to 
name,  the  contract  is  void,  but  the  parties  cannot  discharge 
it,  because  they  have  put  it  in  the  power  of  the  third  person 
to  perfect.  (^) 

5<  :i  10.  The  conclusion  that  a  valid  sale  could  be  effected 
at 'such  a  price  as  a  third  person  should  lix  was  not  arrived 
at  in  the  Roman  law  without  great  doubt,  or  finally  settled 
until  the  time  of  Justinian.  Ofilius  and  Proculus  main- 
tained the  validity  of  such  a  sale ;  Labeo  and  Cassius  denied 
it.  {a)  ' '  Sed  nostra  decisio, ' '  says  Justinian,  after  adverting 
to  the  doubts  of  the  ancients,  ''ita  hoc  constituit,  ut  quo- 
tiens  sic  composita  sit  mnditio  qnanti  ille  cBstimaverit,  sub 
hac  condicione  staret  contractus  ut,  si  quidem  ipse  qui  no- 
minatus  est  pretium  definierit,  omnimodo  secundum  ejus 
cBstimationem  et  pretium  persoUatur  et  res  tradatur,  ut , 
mnditio  ad  effectum  perducatur,  emptore  quidem  ex  empto 
actione,  mnditore  autem  ex  mndito  agente.  Sin  autem  ille 
qui  nomiiudus  est  ml  noluerit  ml  non  potuerit  pretium  de- 
finire,  tunc  pro  nihile  esse  mnditionem,  quasi  mdlo  pretio 
statutoy{h)  The  principle  thus  established  by  Justinian  is 
embodied  in  the  French  law,(c)  and  has  found  its  way  into 
our  jurisprudence. 

§  341.  The  persons  nominated  to  value  are  sometimes, 
though  inaccurately,  spoken  of  as  arbitrators.  Arbitrators 
are  appointed  to  settle  a  pre-existing  dispute;  valuers  to 
ascertain  the  value  of  the  subject-matter  of  the  sale.  It  fol- 
lows that  the  provisions  of  the  common  law  procedure  act, 
1854  (17  and  18  Vict.,  ch.  124,  s.  12),  are  not  applicable  to 
valuers  named  in  a  contract.  (cZ) 

§  343.  Of  the  first  class  of  cases,  viz. :  those  in  which  the 
contract  provides  the  mode  of  ascertaining  the  price,  and 
this  provision  is  an  essential  term,  Milnes  v.  Gery,(6)  may  be 
considered  as  the  leading  case.  There  was  there  a  contract 
that  land  should  be  sold  at  a  price  to  be  fixed  by  one  valuer 
api)ointed  on  each  side,  or  their  umj)ire ;  the  valuers  could 
not  agree  ;  and  Grant,  M.  R.,  held  the  contract  to  be  incom- 
plete, and  that  the  court  could  not  supply  the  defect  by 

(z)  Maxims,  ed.  1G36.  pp.  71,  73.  ^  (c)  Code  Civil,  art.  1592. 

(a)  Troplong,  De  la  Vente,  §  156.  (d)  Collins  v.  ColUns,  26  Beav.,  306. 

(6)  Inst.  Lib.,  3  tit.  23,  §  1.  («)  14  Ves.,  400. 


INCOMPLETENESS  OF  THE  CONTRACT.        165 

appointing  other  persons  as  valuers,  wliicli  would  be  to 
execute  a  contract  different  from  that  of  the  parties ; 
although,  where  it  is  merely  a  contract  to  sell  at  a  fair  price, 
that  is  a  matter  which  the  court  can  ascertain.  "A  man," 
said  Leach,  V.  C.,(/')  "who  agreed  to  sell  at  a  price  to  be 
named  by  A.,  B.,  and  C,  could  not  be  compelled  by  a  couit 
of  equity  to  sell  at  any  other  price."  This  principle  lias 
governed  the  decision  of  several  other  cases  of  specific  per- 
formance, {g)  and  may  further  be  illustrated  by  the  cases  at 
common  law.(^)' 

§  343.  The  difficulty  has  in  several  cases  prevailed,  not- 
withstanding the  fact  that  the  obstacle  has  arisen  from  the 
defendant's  default.  Thus  where  the  contract  was  to  sell 
at  a  price  to  be  lixed  by  arbitrators,  but,  in  consequence  of 
the  defendant  having  refused  to  execute  the  arbitration 
bond,  it  was  uncertain  whether  any  award  would  be  made, 
the  court  refused  to  proceed ;(/)  and  the  same  result  fol- 
lowed where  the  refusal  of  one  of  the  valuers  to  proceed 
appeared  to  arise  from  the  information  given  to  him  by  the 
defendant,  of  his  intention  not  to  complete. (,/)  But  where 
a  vendor  had  agreed  to  sell  a  public  house  for  £10,700,  and 
the  furniture  and  fixtures  in  it  at  a  fair  valuation  to  be  made 
by  L.,  and  after  L.  had  commenced  taking  the  inventory, 
the  vendor  refused  to  allow  him  to  complete  it,  Jessel,  M.  R., 
on  an  interlocutory  application,  made  an  order  that  L.  be 
permitted  to  enter  the  premises  for  the  purpose  of  complet- 
ing the  valuation.  (A-)     In  a  case  where  the  price  was  to  be 

(/)  In  Morse  v.  Merest,  G  Mad.,  26.  (i)  Wllks  v.  Davis,  3  Mer.,  507;  Vickers  v. 

(f/)  Blundell    v.   Brettargh,    17  Ves.,  233;  Vickers,  L.  R.  4  Eq.,  529.     Cf.  Morse  v.  Mer- 

Gourlay  V   Duke  of  Somerset,  19  Ves.,  429;  est, 6  Mad., 26.                                      „.    ^.  ^ 

Agar  V.  Macklew,  2  S    &  S.,418;  Darbey  v.  O;  Darbey  v.  Whltaker,  4  Drew.,134;  Vlck- 

Whitaker,  4  Drew.,  134  ers  v.  Vickers,  L.  R.  4  Eq  ,  529. 

(h)  E.  g  ,  Thurnell  v.  Balburnie.  2  M.  &  W.,  (k)  Smith  v.  Peters,  I..  R.  20  Eq.,  511. 
786;  Morgan  v.  Birnie,  9  Bing.,672;  Milner 

V.  Field,  5  Ex.,  829.  


'  A.  and  B.  built  a  mill  together.  A.  agreed  to  convey  bis  moiety  to  B.  on 
his  paying  to  him  the  amount  which  it  cost  A. ,  and  they  further  agreed  to  refer 
it  to  several  persons  named  to  ascertain  the  cost.  The  referee's  could  not  agree, 
and  A.  refused  to  have  an  umpire  chosen.  B.  filed  a  bill  for  a  specific  perform- 
ance of  the  contract  by  A.,  praying  an  account  of  the  cost  by  A  .  that  Jie  re- 
ceive that  sum,  and  make  a  conveyance.  Held,  that  to  grant  the  prayer  6f  the 
bill  would  be  to  make  a  contract  for  the  parties,  and  tlien  e.\ecute  it ;  and  that 
the  agreement  of  A.  was  not  to  convey  on  payment  to  him  of  the  cost  of  his 
part  of  the  mill,  but  on  the  payment  of  the  cost  as  ascertained  by  the  arbitra- 
tors named.  Nortleet  v.  Southall,  8  Mur.,  189.  In  Graham  v.  Call.  5  Munf., 
396,  where,  by  an  agreement  for  the  sale  of  land,  the  price  was  to  be  ascer- 
tained and  fixed  by  the  parties,  and  one  of  them  died  before  that  price  had 
been  fixed  by  them,  it  was  held  that  the  agreement  was  too  incomplete  and  un- 
certain to  be  enforced  specifically  in  equity. 


166        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

ascertained  by  one  of  two  alternative  modes,  and  no  election 
had  been  made  as  to  the  mode  of  ascertainment,  the  court 
held  that  no  contract  had  been  constituted. (Z) 

§  344.  In  a  case  between  a  landowner  and  a  railway  com- 
pany, a  contract  had  been  entered  into  under  which  the 
company  was  to  do  certain  works.  By  a  subsequent  con- 
tract an  estimate  of  the  cost  of  completing  the  works  was  to 
be  made  by  the  company's  engineer  and  submitted  to  A., 
the  landowner's  agent,  "for  approval;"  in  case  of  differ- 
ence the  amount  was  to  be  determined  by  B. ;  the  amount 
"when  agreed  or  determined"  was  to  be  paid  to  the  land- 
owner by  the  company  in  discharge  of  their  obligations  as 
to  the  works.  A.  died  before  approving  any  estimate.  ,  B. 
was  living;  it  was  held  that  by  A.'s  death  the  contract 
became  incapable  of  enforcement,  {m) 

§  345.  Again,  where  a  railway  company  contracted  for 
the  purchase  of  land  with  a  charitable  corporation  who  had 
no  power  to  sell  except  under  the  lands  clauses  consolida- 
tion act,  and  the  price  had  not  been  ascertained  by  sur- 
veyor's certificate  pursuant  to  the  provisions  of  that  act,  the 
court  held  that  no  final  contract  had  been  arrived  at.(?i) 
It  may  here  be  noticed  that,  when  once  the  price  has  been 
fixed  pursuant  to  the  act,  the  purchasing  corporation  is 
compellable  to  complete  the  purchase,  (o) 

§  340.  The  second  class  of  cases  embraces  those  contracts 
which  are  substantially  for  the  sale  of  the  property  in  ques- 
tion at  a  fair  price,  the  mode  of  ascertainment,  though  indi- 
cated by  the  contract,  being  subsidiar}'  and  non-essential ; 
and  where  consequently,  if  that  mode  of  ascertainment  has 
failed,  the  court  will  have  recourse  to  some  other  means  of 
coming  at  tlie  fair  x^rice  and  of  thus  carrying  into  effect  the 
contract  in  its  essential  parts.'  As- already  remarked  these 
cases  are  principally  of  the  valuaticm  of  incidental  matters 
and  not  of  the  principal  subject-matter  of  the  contract. 

§  347.  Grant,  M.  R,.,  not  only  indicated,  in  his  judgment 
in  Milnes  v.  Gery,(p)  the  distinction  of  the  two  classes  of 

il)  Morgan  v  Milman,3  De  G  M.  &  G.,24.       (o)  Harfllng  v.  Metropolitan  Railway  Co  , 
(m)  Firth  v.  MMland  Railway  Co.,  L.  R.    L   R.  7  <  h.,  154;  supra,  §  113. 

20  Eq  ,  100.  (p)  14  Ves.,  400. 

(Ti)  Wycombe  Railway  Co.  v.  Donnington 

Hospital,  L.  R.  1  Oh.,  268. 

'  Smith  V.  Peters,  L.  R,  20  Eq.,  511;  Whillock  v.  Duffeld,  1  Hoffm.  Ch., 
110;  Vandoren  v,  Robinson,  16  N.  J.  Eq.,  110. 


INCOMPLETENESS   OF   THE   CONTRACT.  1G7 

cases,  but  in  two  other  cases  before  him  acted  upon  it.  In 
the  earlier,  in  consequence  of  the  lunacy  of  the  vendor,  the 
valuers  could  not  be  nominated  ;  but  the  master  of  the  rolls 
did  not  consider  this  an  insurmountable  difficulty,  saying 
that,  "if  there  was  a  valid  and  binding  contract,  the  super- 
vening incapacity  of  one  party  cannot  deprive  the  other  of 
the  benefit;"  and  he  accordingly  directed  an  issue  as  to 
the  lunacy,  as  a  preliminary  step  in  the  cause.  (^)  In  the 
other  case,  there  was  a  contract  to  grant  a  lease,  to  contain 
such  conditions  as  A.  B.  should  think  reasonable  and 
proper ;  and  his  honor  referred  it  to  the  master  to  settle  the 
lease,  and  not  to  A.  B. — considering  the  agency  of  A.  B. 
not  to  be  of  the  essence  of  the  contract,  and  that  the  court 
would  not  grant  relief  through  the  medium  of  a  reference 
compulsory  on  the  other  party,  (r)  And  so  in  a  case  before 
Stuart,  V.  C,  where  there  was  a  contract  to  sell  land  and 
bleachworks  at  a  sum  fixed,  and  the  plant  and  machinery 
to  be  taken  at  a  value  to  be  ascertained  by  valuers  to  be  aj^- 
pointed  by  the  parties,  it  was  held  that  this  was  a  subsidiary 
stipulation  only,  and  that  it  did  not  form  an  obstacle  to 
sx)ecific  performance,  which  was  accordingly  decreed,  with 
costs,  (.s)  The  same  view  was  taken  both  by  Stuart,  Y.  C, 
and  on  appeal  by  Lord  Hatherley  in  a  case  where  the  main 
subject  of  the  contract  was  the  sale  of  an  estate  for  £24,000, 
and  a  provision  was  inserted  for  the  valuation  of  certain 
furniture  and  articles  \{f)  and  in  another  case  where  a  i)art- 
nership  contract  contained  a  provision  for  a  valuation  at  its 
expiration,  which  fell  through  from  there  being  no  provision 
as  to  an  umpire,  the  court  ascertained  the  value.  (?/)  The 
main  object  of  the  contract  there  was  the  partnership  ;  the 
defendant  had  had  the  benetit  of  that  contract,  and  could 
not  be  allowed  to  escape  from  the  subsidiary  contract  as  to 
sale  on  the  ground  of  the  difficulty  as  to  the  valuation. 

§  348.  In  another  case  before  Stuart,  V.  C,  he  remarked 
that,  where  possession  is  referable  to  a  contract  to  give  a  fair 
consideration,  the  amount  of  which  has  not  been  settled,  the 
court  will,  in  favor  of  possession  and  expenditure  referable 

(q)  Hall  V.  Warren,  9  Ves.,  605.  referees  as  to  price  ought  to  procoed.  ami  on 

(r)  Gourlav  v.  Duke  of  Somerset,  19  Ves.,  what  urounds  they  may  ileterminc,  see  Eads 

429  V.  Williams.  4  De  G.  M.  \^  Ci  ,  674. 

(s)  Jackson  v.  Jackson,  1  Sm.  &  G.,  184;        (0  Richardson  v.  Smith,  I>.  U.  ^  Ch.,  648. 

Paris  Chocolate  Co.  v.  Crystal  Palace  Co.,  3       («)  Diuham  v.  Bratll»rd,  L.  U.  5  Ch.,  619. 

Sm.  &  G.,  119, 123.    As  to  the  way  in  which 


168        FKY  ON  SPECIFIC  PEKFOKMANCE  OF  CONTEACTS. 

to  this  contract,  endeavor  by  every  means  within  the  legiti- 
mate bounds  of  its  jurisdiction  to  ascertain  the  amount  of 
the  consideration.  ('«) 

§  349.  (4)  It  is,  of  course,  essential  to  the  completeness 
of  the  contract,  that  it  should  express  not  only  the  names  of 
the  parties,  the  subject-matter,  and  the  price,  but  all  the 
other  material  terms.  What  are,  in  each  case,  the  material 
terms  of  a  contract,  and  how  far  it  must  descend  into  details 
to  prevent  its  being  void  as  incomplete  and  uncertain,  are 
questions  which  must,  of  course,  be  determined  by  a  con- 
sideration of  each  contract  separately.  It  may,  however, 
be  laid  down  that  the  court  will  carry  into  effect  a  contract 
framed  in  general  terms,  where  the  law  will  supply  the  de- 
tails ;(zo)  but  if  any  details  are  to  be  supplied  in  modes 
which  cannot  be  adopted  by  the  court,  there  is  then  no  con- 
cluded contract  capable  of  being  enforced. (^) 

§  350.  i'jiough  it  may  be  impossible  to  define  what  is  the 
necessary  completeness  in  the  terms  of  a  contract,  it  is  easy 
to  give  instances  in  which  contracts  have  been  held  insuffi- 
cient in  this  respect.  Such  was  the  case  where  it  was  not 
stated  from  what  time  an  increased  rent  was  to  com- 
mence \{y)  where  the  contract  did  not  state,' either  directly 
or  by  reference,  the  length  of  the  term  to  be  granted  ;(2) 
where  a  contract  for  a  lease  for  lives  neither  named  the  lives 
nor  decided  by  whom  they  were  to  be  named  ;(«)  where  an 
auctioneers' s  receipt  was  set  up  as  a  contract,  but  it  did  not 
refer  to  the  conditions  of  sale,  or  show  the  proportion  which 
the  deposit  was  to  bear  to  the  price  \{b)  where  there  was  a 
term  as  to  the  expenses  which  was  not  settled  by  the  con- 
tract ;(c)  where  there  was  a  contract  for  a  partnership,  which 
defined  the  term  of  years,  but  was  silent  as  to  the  amount 
of  capital  and  the  manner  in  which  it  was   to  be  pro- 

iv)  Meynell  v.  Surtees,  3  Sm.  &  Gif.,  101,  5  De  G.  M.  &  G.,  888;  Ridgway  v.  Wharton, 

113;  affirmed,  1  Jur.  N.  S.,  737;  3  W.  R.,  535.  6  H.  L.  C.  285;  Rummens  v.  Robins, 3  Deft. 

See,  alio,  Cheslyn  v.  Dalby,  2  Y.  &  C.  Ex  ,  J.  &  S.,  88;  infra,  §  361. 
170.  (y)  Lord  Ormond  v.  Anderson,  2  Ball.  & 

(M))In  Hampshire  v.  Wickens  (7  Ch.  D.,  B  ,  363. 
555),  the  power  of  the  court  to  enforce  a  con         (2)  Clinan  v.  Cooke,  1  Sch.  &  Lef.,  22;  Gor- 

tract  to  accept  a  lease  "  to  contain  all  usual  don  v.  Trevelyan,  1  Pri.,  64;  Bayly  v.  Fitz- 

coyenants  and  provisions"  appears  to  have  maurice,  8  El.  &  Bl.,  664. 
been  admitted.     Of.  Haines  v.  Burnett,  27       (a)  Wheeler  v.  D'Esterre,  2  Dow,  359.   But 

Eeav.,  500;  Kendall  v.  Hill,  6  Jur.  N  S.,  968;  query  whether  the  lessee  cannot  name  the 

Poyntz  V  .  Fortune,  27  Beav.,  393;  Blakeney  lives  when  the  contract  Is  silent.    See,  also, 

V.  llardie,  I.  R.8  Eq.,381 ;  and  consider  Gull-  Lord  Kensington  v.  Phillips,  3  Dow,  61. 
lamore  v.  Peacocke.  12  Ir.  Ch.  R  ,  354,  3Gi).  (6)  Blagden  v.  Bradbear,  12  Ves  ,  466. 

{X)  See  South  Wales  Railway  Co.  v.Wythes,       (c)  Stratford  v.  Bosworth,  2  V.  &  B.,  341. 


INCOMPLETENESS   OF  THE   CONTRACT.  169 

vided :  {ciy  and  where  a  document  showed  the  amount  of 
rent  to  be  paid  by  a  party  to  a  mining  enterjirise,  but  was 
silent  as  to  other  terms,  (e) 

§  351.  Contracts  are  often  incomplete  from  their  reserv- 
ing some  matter  for  future  agreement ;  unless,  perhaps,  in 
cases  where,  in  the  absence  of  such  agreement,  the  law  de- 
termines the  matter, (/')  such  contracts  are  necessarily 
incomplete  until  the  further  agreement  has  been  come  to. 
A  contract  to  contract  is  nothing. 

§  3dtJ.  Where  the  contract  provides  for  the  determina- 
tion of  any  material  thing  by  some  third  person,  and  this 
has  not  been  done,  the  contract  is  in  the  same  j)redicament 
as  when  the  price  has  been  neither  expressed  in  tlie  con- 
tract nor  ascertained.  Cases  have  occurred  where  Ituiklings 
or  works  have  been  stipulated  to  be  done  in  such  manner  as 
a  third  person  may  direct,  and  where  such  direction  has 
either  been  refused  or  not  given  ;  and  in  these  cases  specific 
performance  has  been  refused.  (<;) 

§  353.  Besides  the  express  terms  of  the  contract,  there 
are  others  which,  in  the  absence  of  any  expression  to  the 
contrary,  are  implied  by  law.  (7^)  With  regard  to  such 
terms,  therefore,  whether  they  be  necessary  terms  or  not, 
the  silence  of  the  contract  does  not  render  it  incomplete, 
thus  a  contract  to  sell  property  described  merely  as  cottages 
and  land  purchased  by  the  vender  of  persons  named  was 
construed  as  referring  to,  and  importing  the  sale  of,  the 
whole  of  the  vendor's  interest. (i)  A  contract  to  sell  a  house 
simply  implies  that  the  interest  sold  is  the  fee  simple ;0')  and 
a  contract  to  renew  is  presumed  to  be  for  the  same  term  as 
the  preceding  lease,  {k) 

(d\  Downs  V.  Collins,  6  Ha.,  418  of  the  contract,  being  Implied  In  It  unless 

(«)  Caddick  v.  Skldmore,  2  De  G.  &  J.,  o2  expressly  excluded,   but  capable  of  being 

(/)  Hall  V.  Conder,  2  C.  B.  N  S„  22.  thus  excluded  without  subverting  the  con. 

(g)    TUlett  V.  Charing  Cross  Bridge  Co.,  26  tract;  and,  3d,  the  things  that  are  iiccidental. 

Beav.,  419;  Earl  of  Darnley  t.  London,  Chat-  The  terms  in  qmstlon  correspond,  of  course, 

ham  and  Dover  Railway  Co.,  3  De  G.  J.  &  with  the  second  of  these  clashes.    Pi.thicr, 

S.,  24  (cf.  8.  C,  1  Id  ,  204;  L.  R.  2  H.  I,  ,  43).  Tr.  dos  Obllg.,  Part  I,  chap.  1,  sect.  1,  art.  1, 

(A)  The  elements  of  all  contracts  have,  by  §  3. 

some  jurists,  been  placed  in  three  classes:  (t)  Bower  v.  Cooper,  2  Ila.,  408. 

Ist,  those  things  which  are  essential,  without  (j)  Hu>;hes  v.  I'arkcr,  ?  M.  &  W.,  243. 

•which  the  contract  cannot  exist;  2d,  those  (k)  Price  v.  Asshcton,  1  Y.  &  C.  Ex  ,  82. 

which  are  of  the  nature  but  not  of  the  essence 

'  Baker  v.  Glass,  6  Arunf.,  212,  is  a  case  in  point.  There,  a  contract  for  the 
sale  of  land,  by  which  the  vendor  agreed  to  take,  in  part  payment,  a  liouse  and 
lot  of  the  vendee  at  its  ca.sh  value,  to  be  fixed  by  two  persons,  and  the  parties 
agreed  to  appoint  such  persons,  but  not  within  any  specified  time,  and  never 
did  so,  was  held  to  be  too  incomplete  to  be  enforced  in  equity. 


170        FRY  ON  SPECIFIC  PERFOKMANCE  OF  CONTRACTS. 

§  354.  Tn  every  contract  for  the  sale  of  land,  a  con- 
dition is  implied  for  a  good  title,  (Z)  and  for  the  delivery 
11  p  of  the  deeds ;  so  that  where  this  was  prevented  by  the 
accidental  destruction  of  the  deeds  subsequent  to  the  con- 
tract, it  was  held  that  the  vendor  could  not  enforce  the 
sa]e.{m.)  The  title  to  be  shown,  of  course,  varies  according 
to  the  nature  of  the  property  to  be  sold  ;{n)  in  the  case  of 
the  sale  of  a  lease,  it  formerly  included  the  title  of  the 
lessor, (o)  except  in  the  case  of  a  bishop's  lease. (^)  But  by 
the  vendor  and  purchaser  act,  1874,(2')  it  has  been  jorovided 
that  under  a  contract  to  grant  or  assign  a  term  of  years 
whether  derived  or  to  be  derived  out  of  a  freehold  or  lease- 
hold estate  the  intended  lessee  or  assign  shall  not  be  entitled 
to  call  for  the  title  to  the  freehold ;  and  by  the  same  act 
certain  other  provisions  of  a  kind  very  common  in  contracts 
of  sale  are,  in  the  absence  of  stipulation  to  the  contrary, 
made  imi:)lied  terms  in  contracts  for  the  sale  of  land. 

§  3o«>.  The  terms  entitling  a  purchaser  to  title  are  con- 
ditions for  the  benefit  of  the  purchaser,  and  may  accordingly 
be  waived  by  him,  though  the  vendor  may  desire  to  insist 
on  them  as  a  ground  for  discharging  himself  from  the  con- 
tract, (r)' 

§  356.  On  principle  there  seems  much  in  favor  of  the 
view,  that  a  contract  for  an  under  lease  implies  that  the  sub- 
lessee is  to  be  subject  to  all  the  covenants  in  the  superior 
lease,  and  it  is  not  unsupjDorted  by  authority.  (5)  But  it  has 
been  determined  that  this  implication  can  only  arise  where 

(i)  Doe  (1.  Gray  v.   Stanion,  1  M.  &  W.,  Preston,  25  L.  J.  Ex.,  287:  and  see  Infra,  § 

695, 701;  Worthlngton  v.  Warrington,  5  C.  B.,  1318. 

635  ( p)  Fane  v.  Spencer,  2  Mer.,  430,  n. 

{m)  Bryant  v.  Busk,  4  Russ..  1.  (q)  37  and  38  Viot.,  c.  78. 

(n)  Curlingv.  Flight,6Ha.,41;  S.C.,2Ph,  (r)  Bennett  v.  Fowler,  2  Beav,  302. 

613.  (s)  Cosser  v.  Collinge,  3  My    &  K  ,  283; 

(o)  Fildcs  V.  Hooker,  2  Mer  ,  424;  Souter  Smith  v    Capron,  7  Ha.,  185;  Grosvenor  v. 

V.  Drake,  5  B.   &  Ad,  992;  Hall  v.  Betty,  4  Green.  7  W.  R.,  140;  cf.  Collins  v.  Stutely, 

Man   &  Gr.,  410      As  to  ilie  contract  for  the  id  ,  710. 
sale  of  a  contract  for  a  lease,  see  Kintrea  v. 


_ '_  Unless  the  vendee  expressly  assumes  the  risk  as  to  title,  although  no  pro- 
vision is  made  in  the  contract  for  a  covenant  of  warranty  to  be  inserted  in  the 
deed,  if  tlie  vendor  cannot  give  a  good  title,  equity  will  not,  as  a  general  rule, 
decree  its  specific  performance.  Bates  v.  Delavan,  5  Paige,  299 ;  Watts  v.  Wad- 
dle, 1  McLean,  20U.  And  not  only  mu.st  the  title  not  be  a  defective  one,  but  it 
must  be  such  an  one  as  the  vendor  covenanted  to  convey.  Tomlin  v.  McCord, 
5  J.  J.  Marsh.,  135;  Jarman  v.  Davis,  4  Monr.,  115.  But  where  a  person  agree- 
ing to  sell  lands  has  a  good  title,  and  was  able  to  convey  at  the  time  of  the  bar- 
gain entered  into,  and  no  delay  can  be  imputed  to  him  in  performing  his  part 
of  the  contract,  the  contract  is  considered  in  equity  as  then  executed;  the  subse- 
quent conveyance  being  only  matter  of  form,  the  substance  being  the  bargain. 
Kay  v.  McCulloch,  Conf.  Cam.  &  Nor.,  492. 


INCOMPLETENESS  OF  THE  CONTRACT,        171 

the  purchaser  had  a  fair  opportunity  of  ascertaining  for 
himself  the  i)ro visions  of  the  original  lease  ',{t)  and  if  the 
contract  were  silent,  and  unusual  provisions  were  found  in 
the  head  lease,  the  court  would  probably  not  enforce  specific 
performance  on  the  ground  of  the  imjplication  referred  to.{u) 
Possession  taken  by  the  intended  lessee  is  a  strong  circum- 
stance to  fix  him  with  an  acceptance  of  the  terms  of  the 
head  lease.  («)  But  it  is  not  conclusive,  and  the  circum- 
stances under  which  the  possession  was  taken  may  dejDrive 
it  of  this  effect. ('M)) 

§  357,  The  question  whether  or  no  there  is  an  implica- 
tion in  executory  contracts  in  favor  of  the  insertion  in  the 
executed  contract  of  all  such  stipulations  as  are  usually  in- 
serted in  such  contracts,  appears  one  still  open  in  our»law,  (re) 

§  358,  An  implied  term  may,  of  course,  be  rebutted  by 
the  contract  or  conditions  of  sale  ;  as  where  they  limit  the 
title  to  be  deduced,  or  provide  that  the  purchaser  shall 
simply  take  the  vendor' s  interest,  (y)  And  further,  although 
an  express  term  of  a  contract  is  in  nowise  affected  by 
notice,  (£•)  yet  notice  is  sufficient  to  rebut  the  presumption  of 
an  implied  term  ;  fpr  that  is  something  not  growing  out  of 
the  contract  itself,  but  given  by  law,  and  a  matter  therefore 
not  of  contract  but  of  notice. («)  So  that,  for  instance,  where 
a  purchaser  has  notice  that  the  vendor  is  only  a  lessee,  he 
cannot  insist  on  the  implication  which  might  otherwise  arise, 
that  the  contract  is  for  the  fee.  (5) 

§  359.  Again,  a  material  term  may  well  be  supplied  by 
construction  or  inference  where  the  circumstances  Justify  it; 
but  if  neither  supplied  by  expression,  construction,  nor  in- 
ference, the  contract  is  incapable  of  performance.  Tlius,  a 
contract  for  the  grant  of  a  term  of  years  may  be  construed 
to  be  for  a  term  of  years  commencing  from  the  date  which 
the  memorandum  of  the  contract  bears  ;(e)  but  where  the 
contract  is  either  undated,  or  there  are  stipulations  for 
things  to  be  done  before  the  commencement  of  the  term, 
which  show  that  the  date  of  the  contract  could  not  be  in- 

(<)  Hvde  V.  War.len.  3  Ex.  D  ,  73.  (y)  Frerae  v.  W-right,  4  ^Jaj^  .  364^ 

(V)  FllRht  V.  Baslin,  3  Aly.  &  K.,  282.  (z)  Barnet  v.  Wheeler.  .SI.  &  W    36 

(V)  Cesser  v.  ColUnge;  Smith  v.   Capron.  (n)  Ogilvie  v.  Foljambe,  3  Mer  ,  53,  61. 

ubi  BUBra  (*)  Oowley  v.  ^^  atts,  1*  Jur..  17-2. 

(w)  Hyde  V.  Warden,  ubi  supra.  (c)  Doe  d.  Phillip  v.  Benjamin  9  A.  &  E  , 

\x)  Ricketts  v.  Bell,  1  De  w.  &  Sm.,  335,  644;  Hersey  v.  Gibli-tt,  18  Beav.,  1/4;  Jaqiies 

where  the  question  was  much  discussed  by  v.  Millar,  6  CIk  D.,  153.    See,  too,  Wesley  v. 

Knight  Bruce,  V    C.    Of.  Blakeney  v.  Har-  Walker,  26  W.  R.,  368. 

die,  I.  R.  SEq.,  381. 


172         FKY  UN  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

tended  to  be  the  coiiimencement  of  the  term,  there  the  con- 
tract is  incomplete,  because  a  material  item  in  it  is  entirely 

wanting.  (<^) 

j<  :i«0.  Where  A.,  being  lessee  of  a  house  and  shop  for 
the  unexpired  residue  (fifty-nine  years)  of  a  term  of  eighty 
years,  agreed  to  sub-let  the  premises  to  B.  (who  did  not 
know  the  nature  of  A.'s  interest)  at  a  fixed  yearly  rent, 
but  the  duration  of  the  under-lease  was  not  specified  in 
the  contract,  and  B.  went  into  and  remained  in  possession, 
and  laid  out  money  in  improving  the  premises,  and  ulti- 
mately, when  the  head  lease  had  still  twenty  years  to  run, 
brought  his  action  for  specific  performance  of  the  contract ; 
it  was  held,  by  Bacon,  Y.  C,  that  B.  was  entitled  to  an 
under-lease  for  the  whole  of  the  residue  of  the  term,  less 
one  day;  and  the  court  of  appeal  affirmed  the  plaintiff's 
right  to  an  under-lease  of  defined  duration,  though  they 
varied  the  vice-chancellor's  decision  by  directing  A.  to 
grant  an  under-lease  for  the  residue  of  the  term,  less  one 
day,  if  the  plaintiff  should  so  long  live.(e) 

(d)  Blore  V.  Sutton,  3  Mer  ,  237  (where  it    W.  U.,  4S7;  reversing  S.  C,  12  W.   R.,  704; 
does  not  appear  that  the  memorandum  bore    Dolling  v   Evans,  15  VV".  R  ,  394 
any  date);  Xesham  v.  Selby,  L,  R    13  Eq.,        re)  Kusel  v.  Watson,   II  Ch.  D.,  129.    Cf. 
191;  7  Ch.,406;  Cartwright  v.  Miller,  36  L.    Browne  v.  Warner,  14  Ves  ,  156;  Re  Kings 
T..  398     See,  too,  Southern  v.  Harriman,14    Leasehold  Estates,  L.  R  16  Eq.,521;  Wood 

v.  Beard,  2  Ex.  D.,  30, 


UNCERTAINTY  OF  THE  CONTRACT.  173 


CHAPTER  IV. 

OF  THE   TJNCERTAIXTY   OF   THE   CONTRACT. 

§361.  It  is  obvious  that  an  amouiit  of  certainty  must 
be  required  in  proceedings  for  tlie  specific  performance  of  a 
contract  greater  than  that  demanded  in  an  action  for  dam- 
ages. For  to  sustain  the  latter  proceeding,  the  proposition 
required  is  the  negative  one,  that  the  defendant  has  not 
performed  the  contract— a  conchision  which  may  be  often 
arrived  at  without  any  exact  consideration  of  the  terms  of 
the  contract ;  whilst  in  proceedings  for  specific  performance 
it  must  appear  not  only  that  the  contract  has  not  been  per- 
formed, but  what  is  the  contract  which  is  to  be  performed. 
It  is,  perhaps,  impossible  to  lay  down  any  general  rule  as 
to  what  is  sufficient  certainty  in  a  contract ;  but  it  may  be 
safely  stated  that  the  certainty  required  must  be  a  reasona- 
ble one,  having  regard  to  the  subject-matter  of  the  con- 
tract, (a)'  and   the  circumstances  under  which  and  with 

(a)  See  Arist.  Eth.  Mc.  lib.  i.,  c.  3. 


1  Notwithstanding  the  terms  of  a  contract  are  general,  yet  equity  will  en- 
force it  if  the  law  supplies  the  details;  but  it  will  not  do  so  if  details  are  omit- 
ted which  the  law  cannot  adopt.  Ridgway  v.  Whorton,  6  House  of  Lords, 
285;  Nichols  v.  Wilhams,  22  N.  J.  Eq.,  63;  Tiernan  v.  Gibney,  24  Wis.,  190; 
Clark  V.  Clark,  49  Cal.,  586;  Riley  v.  Farusworth,  116  Mass.,  223;  Picket  v 
Merchants'  Nat.  Bank,  32  Ark  ,  346.  An  agreement  did  not  call  for  a  deed 
with  full  covenants.  Held,  that  the  vendee  was  only  entitled  to  a  good  de_ed 
to  convey  the  title  in  fee  simple.  Lounsberry  v.  Locander,  2;j  N.  J.  Eq.,  oo4; 
Thayer  v.  Tony,  37  N.  J.  Law,  339. 

.  Agreement  to  convey  good  title.]  A  covenant  to  convey  a  "good  title,"  does 
not  necessarily  entitle  the  party  to  a  warrantee  deed,  a  "good  title  being 
effectually  vested  in  him  by  a  quit  claim  deed.  Gazeley  v.  Price,  lb  John., 
267;  Potter  v.  Tuttle,  22  Conn.,  512;  Kyle  v.  Kavanaugh,  103  Mass  ,  dob; 
contra,  Hoback  v.  Kilgores,  26  Gratt.,  442. 

Tax  assess7nents.]  The  vendee  is  liable  for  tax  assessments  iCTied  subsequent 
to  the  sale,  where  real  property  is  sold,  and  a  title  bond  given.  Hall  v.  Denckla, 
28  Ark.,  506. 

Tiine  of  cmnpletion  may  be  implied.'\  This  maybe  done  from  the  nature  or 
condition  of  the  subject-matter  of  the  contract.  McKay  v.  Carnngton,  1  Mc- 
Lean, 59;  Hoyt  v.  Tuxbury,  70  111.,  891. 

Contract  to  convey  land;  rule  as  to  certainty.]  The  certainty  required  for  the 
specific  performance  of  an  agreement  to  sell  land,  refer's  as  well  to  the  descrip- 
tion of  the  property  as  to  the  estate  to  be  conveyed.     O'Brien  v.  Pentz,  48  Md., 


174        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

562;  Shrivcr  V.  Seiss,  49  id.,  384;  Sliakspcarc  v.  Markham,  10  Hun,  311;  Cox 
V.  Cox,  59  Ala.,  591. 

PncNon  in  contracts.]  The  following  cases  should  be  consulted  under  this 
head-  Colson  v.  Thomson,  2  Wheat.,  336;  Carr  v.  Duval,  14  Pet.,  77;  Kendall 
V  \lmv  2  Sumn  278;  Boweu  v.  Waters,  2  Paine,  1;  Morrison  v.  Rossignol. 
s'Cal  64-  'Minturu  v.  Baylis,  33  Cal.,  129;  Miller  v.  Cotton,  5  Ga.,  341;  Fitz- 
patriciv  v'  Beatty  6  111.  (Gilm.),  454;  Burk  v.  Creditors,  9  La.  An.,  57;  Mc- 
Murlrie  v.  Bennette,  llarr.  Ch.  (Mich.),  124;  Montgomery  v.  Norris.  2  Miss. 
(How  )  499'  Rockwell  v.  Lawrence,  6  N.  J.  Eq.  (2  Halst  ),  190;  Lockerson  v. 
Slilhveli  13  N.  J.  Eq.  (2  Beas.),  257;  Waters  v.  Brown,  7  J.  J.  Marsh.,  123; 
Goodwill  V.  Lyon,  4  Port.  (Ala.),  297;  Madeira  v.  Hopkins,  12  B.  Mon.,  593; 
Graham  v  Call  5  Munf.,  396;  Aday  v.  Echols,  18  Ala.,  353;  Sheid  v.  Stamps, 
2  Sneed.  (Tenn.),  172;  Agard  v.  Valencia,  39  Cal,  292;  Talman  v.  Franklin,  3 
Duer  395;  Lobdell  v.  Lobdell,  36  N.  Y.,  327;  Wiswell  v.  Teft,  5  Kans.,  263; 
Lon<>-  V.  Duncan,  10  id.,  294;  Johnson  v.  Johnson,  16  Minn  ,  512:  Hardesty  v. 
Rich°irdson  44  Md.,  C17,  Hyde  v.  Cooper,  13  Rich.  Eq.,  250;  McKibbin  v. 
Brown  14  X.  J.  Eq.,  13;  Welsh  v.  Bayard,  21  id.,  186;  Huff  v.  Shepherd,  58 
Mo.,  242;  Roundtree  v.  McLean,  Hempst.,  245;  Lloyd  v.  Wheatley,  2  Jones, 
267-  Duvall  v.  Myers,  2  Md.  Ch.,  401;  Wadsworth  v.  Manning,  4  id.,  59; 
Clark  V.  Rochester  R.  R.  Co.,  18  Barb.,  350;  Wright  v.  Wright,  31  Mich.,  380; 
Odell  V.  ]\Ionn,  5  Oregon.  96;  Mehl  v.  Van  der  Walleke,  2  Lans.,  267;  Fott  v. 
Webb,  59  Barb.,  38;  Munsel  v.  Loree,  21  Mich..  491;  McClintock  v.  Laing,  22 
id..  212;  Allen  v.  Webb,  64  Rl.,  342;  Buckmaster  v.  Thompson,  36  N.  Y.,  558; 
Bowman  v.  Cunningham,  78  Rl.,  48;  Schmeling  v.  Hiesel,  45  Wis.,  325;  Blan- 
chard  v.  Detroit  R.  R.  Co.,  31  Mich.,  44;  Carson  v.  Percy,  57  Miss.,  97;  Mat- 
terson  v.  Scofield,  27  Wis.,  671;  Reynolds  v.  O'Neil,  26  K  J.,  223;  Ring  v. 
Ashworth,  3  Iowa,  452;  Cornell  v.  Mulligan  (21  Miss.),  13  Smeed.  &  Marsh.,  388. 

Examples  of  sufficient  descrijjtion  of  land.]  "Land,  whereon  the  vendor  re- 
sides." "The  D.  G.  Roe  farm."  This  is  sufficient,  provided  it  can  otherwise 
be  sufficicntlv  identified.  Simmons  v.  Spenill,  3  Jones'  Eq.,  9.  "Land  lying 
on  the  southwest  side  of  Black  river,  adjoining  land  of  Wm.  Hoffland  and 
Martial."  Kitchen  v.  Herring,  7  Ired.  Eq.,  190.  "Land  lately  bought  by  A. 
from  B.,  to  wit:  a  part  bounded  by  the  section  line  running  from  the  northeast 
corner  of  said  tract  to  the  stake  put  by  C.  on  the  southeast ;  thence  in  a  due 
northea-st  course  until  it  strikes  the  main  road;  thence  along  the  said  road,  then 
it  strikes  the  northern  line  of  said  tract;  thence  to  the  beginning."  Hooper  v. 
Laney,  39  Ala.,  338.  Land  was  located  on  the  south  side  of  a  river  in  a  deed, 
referring  to  a  patent  which  placed  the  land  on  the  west  side  of  such  river. 
The  identity  sufficiently  appearing— Held,  that  the  discrepancy  was  immaterial, 
Munson  v.  Davis,  20  Tex.,  419.  The  town  in  which  the  land  Hes  need  not,  of 
necessity,  be  stated.  Robeson  v.  Hoonbacker,  3  N.  J.  Eq.,  2  Green,  60.  A 
contract  of  conveyance  described  a  right  of  way,  in  which  the  length  of  the 
way  was  not  stated ;  the  terminal  points  were  given,  and  the  line  of  way  so 
fixed  as  to  be  readily  determinable  by  the  government  surveys.  Held,  sufii- 
cient.  Puttman  v.  Haltey,  24  Iowa,  425.  The  grantor  agreed  to  convey  a 
right  of  way  eighty  feet  wide  over  a  tract  of  land,  and  the  grantee  subsequently 
entered  and  laid  out  his  road  with  the  acquiescence  of  the  grantor.  Held,  that 
the  contract  was  sufficiently  definite,  and  that  specific  performance  would  be 
enforced  in  equity.     Purinton  v.  Northern  111.  R.  R.  Co.,  46  111.,  297. 

Examples  of  insufficient  descnption  of  land.]  "  That  a  house  should  be  put 
in  repair,  and  handsomely  decorated."  Taylor  v.  Partington,  7  De  G.  M.  &  G., 
328.  "  The  necessary  land  for  making  a  railway  through  the  estate."  Pearce 
v.  W^atts,  L.  R.,  20  Eq.,  492.  The  contract  recited  that  a  definite  sum  was  to 
be  paid,  on  a  given  day,  for  120  acres  of  land  in  Shannon  county.  Mo.,  pro- 
vided it  shall  not  have  been  sold  before  that  time.  Miller  v.  Campbell,  52  Ind., 
125;  see,  also,  Lynes  v.  Hayden,  119  Mass.,  482.  For  the  sale  of  the  hou.ses  in 
Smithfield  street,  without  other  description,  or  disclosing  to  whom  they  be- 
longed. Hammer  V.  McEldomney,  46  Pa.  St.,  334.  A.  subscribed  $50,  and  a 
lot  to  build  upon,  for  the  purpose  of  building  a  church,  without  stating  the 
extent  or  boundaries  of  the  lot.  Church  of  the  Advent  v.  Farrow,  7  Rich. 
Eq.,  378.  These  were  all  held  to  be  too  indefinite  to  be  enforced.  The  follow- 
ing cases  should  be  consulted  under  this  head :  Camden  and  Amboy  R.  R.  Co.  v. 


UNCERTAINTY  OF  THE  CONTRACT,  175 

regard  to  which  it  was  entered  into,  {by     Thus,  in  one  case, 
where  there  was  a  contract  between  two  railway  companies, 

(6)  Marsh  v.  Milligan,  3  Jur.  N.  S.,  979;  (Wood,  V.  C) 

Stewart,  18  N.  J.  Eq.,  489;  McGuire  v.  Stevens,  43  Miss.,  724;  Whelau  v.  Sul- 
livan, 103  Mass  ,  204;  Ellis  v.  Deadman,  4  Bibb.,  467;  Johnson  v.  Craig.  21 
Ark.,  533;  Jordan  v.  Fay,  40  Me.,  13i);  Graham  v.  Hcudren,  5  Munf.,  iSo; 
Parish  v.  Koons,  1  Pars.  Eq.  (Pa.)  Sel.  Cas.,  79;  Jordou  v.  Deaton,  23  Ark., 
704;  Ferris  v  Irving,  28  Cal.,  G45;  Millard  v.  Ramsdell,  Harr.  (Mich.),  373; 
Shelton  v.  Church,  10  Mo.,  774;  Prater  v.  Miller,  3  Hawkes.  628;  Copps  v. 
Holt,  5  Jones'  Eq.,  153;  Patrick  v.  Horton,  3  W.  Va.,  23;  Taylor  v.  A.shley, 
15  Texas,  50;  Brakin  v.  Hambrick,  25  id.,  408;  Dobson  v.  Litton,  5  Coldw. 
(Tenn.),  616;  Reynolds  v.  Warring,  You.,  34ij;  Dav  v.  Griffith,  15  Iowa.,  104; 
Gelston  v.  Sigmund,  27  Md.,  334;  Nichols  v.  Williams,  22  N.  J.  Eq.,  63; 
Grace  v.  Demison,  114  Mass.,  16;  Martin  v.  Halley,  61  Mo.,  196;  Carr  v.  Pas- 
saic Land  Co.,  22  N.  J.  Eq.,  85;  Soles  v.  Hickman,  20  Pa.  St.,  180;  Kemble  v. 
Kean,  6  Sim.,  333;  Franks  v.  Martin,  1  Ed.,  309.  In  Launderson  v.  Cocker- 
mouth  R.  R.  Co.,  11  Beav.,  497;  White  v.  Hernian,  51  111.,  243,  the  courts  held 
that  they  would  endeavor  to  put  a  reasonable  interpretation  upon  vague  ex- 
pressions in  an  agreement. 

1  Where  the  terms  of  a  contract  are  indefinite  or  uncertain,  specific  perform- 
ance will  not  be  decreed.  McMurtie  v.  Bennett,  Harring.  Ch.,  124;  Millard  v- 
Ramsdill,  id.,  373;  Colson  v.  Thompson,  2  Wheat.,  336;  Walton  v.  Coulson,  1 
McLean,  120;  Kendall  v.  Almy,  2  Sumn.,  278;  Carr  v.  Duval,  14  Pet.,  79; 
Prater  v.  Miller,  3  Hawkes,  628;  Waters  v.  Brown,  7  J.  J.  Marsh.,  123;  Fitz- 
patrick  v.  Beatty,  1  Gilm.,  454;  Goodwin  v.  Lyon,  4  Porter,  297.  So  where  a 
tenant,  holding  by  a  lease  under  seal,  in  consequence  of  a  diminution  of  value 
in  the  leasehold  property,  was  about  to  leave,  and  the  lessor  told  him  that  if  he 
would  stay  he  would  reduce  the  rent,  without  specifying  how  much,  it  was 
held  to  be  so  uncertain  that  equity  could  not  relieve  the  tenant.  Smith  v.  An- 
krim,  1  S.  &  R.,  39.  Neither  will  a  contract,  to  convey  a  quantity  of  any  land 
which  the  obligor  may  own,  be  specifically  enforced.  A  specific  performance 
will  be  decreed  only  where  a  specific  thing  is  to  be  conveyed.  Shelton  v.  Church, 
10  Mis.,  774.  And  specific  performance  of  a  verbal  contract,  which  is  execu- 
tory and  depends  on  a  future  event  which  may  never  happen,  will  not  be  de- 
creed. Bradley  v.  Morgan,  2  A.  K.  Marsh.,  369.  It  seems  that  the  rule,  that 
a  specific  performance  will  be  refused  where  the  contract  is  vitiated  by  uncer- 
tainty, is  applied  with  more  than  ordinary  stringency  against  assignees  and  rep- 
resentatives of  the  contracting  parties.  Kendall  v.  Almy,  2  Sumn.,  178;  Mont- 
gomery v.  Norris,  1  How.  (Miss.),  499.  Though  specific  performance  will  not  be 
decreed  of  a  contract  uncertain  in  its  terms,  yet  if  the  agreement  may  be  made 
certain,  by  means  of  references  furnished  by  the  contract,  it  will  be  enforced. 
Prater  v.  Miller,  3  Hawkes,  628.  And  in  Wiswall  v.  McGowan,  1  Hoff.  Ch. 
126,  it  is  said  that  where  a  contract  refers  to  the  subject-matter  by  vague  and 
insufficient  description,  the  defect  may  be  supplied  by  other  documents,  commg 
from,  or  adopted  by,  the  party  against  whom  the  contract  is  to  be  euforeed, 
pending  and  connected  with  the  transaction.  It  will  be  no  objection  to  decree- 
ing specific  performance  of  a  part  of  a  contract,  that  another  part  is  uncertam.  So, 
where  A.  purchased  property  of  B.  at  a  low  price,  and  agreed  to  give  the  chil- 
dren of  B.  the  benefit  of  it,  on  being  repaid  the  purchase  money  and  interest 
no  uncertainty  existing  in  respect  to  that  part  of  the  agreement  which  provided 
for  the  conveyance  to  the  children  of  B.,  the  court  had  no  difficulty  in  decree- 
ing performance  of  that  part  of  the  contract,  notwithstanding  that  another 
pol-tion  of  the  contract  was  indefinite.  Sartcr  v.  Gordon,  2  Hill.  Ch.,  121  In 
Andrews  t.  Andrews,  28  Ala.,  432,  the  objection  of  imcertainty  in  the  terms 
of  the  contract  being  raised,  the  court  held,  that  while  great  certumty  and  pre- 
cision in  contracts  were  indispensable  prerequisities  to  their  specific  peri orm- 
ance,  in  view  of  the  looseness  and  inaccuracy  of  the  language,  which  showed 
that  the  parties  and  witnesses  were  uneducated,  and  construing  the  inartificial 
expressions  of  the  parties  by  their  subsequent  declarations,  showing  the  mean- 
ing which  they  attached  to  the  words,  the  terms  of  the  contract  were  suffi- 
ciently certain. 


176        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

that  the  one  should  have  the  right  of  running  with  their 
engines,  carriages  and  trucks,  and  carrying  traffic  upon  the 
line  of  the  other,  Parker,  V.  C,  held  that  this  was  not 
too  uncertain  to  be  enforced. (c)  "It  means,"  he  said,  "a 
reasonable  use— a  use  consistent  with  the  proper  enjoyment 
of  the  subject-matter,  and  with  the  rights  of  the  granting 
party." (rZ)  And  we  have  already  seen  that  where  the  terms 
of  tiie  contract  are  general,  but  the  details  are  such  as  the 
law  will  supply,  the  contract  will  not  be  considered  as  ob- 
jectionable for  vagueness  and  uncertainty,  (e)  In  one  case  a 
contract  by  a  railway  company  with  a  landowner,  to  make 
such  roads,  ways  and  slips  for  cattle  as  might  be  necessary, 
was  held  not  incapable  of  being  performed  by  the  court ; 
but  it  is  to  be  observed  that  in  this  case  the  company  had 
entered  and  made  the  railway.  (/)  In  another  case,  where 
a  rector  had  agreed  to  grant  a  lea.se  of  his  glebe,  "except 
thirty-seven  acres  thereof"  (which  were  not  specified),  Lord 
Romilly,  M.  R.,  held  that  the  contract  was  not  void  for  un- 
certainty, inasmuch  as  the  lessor  had  a  right  to  select  the 
thirty-seven  acres  at  any  time  before  the  execution  of 
the  lease.  His  lordship  held,  however,  that  this  right  must 
be  so  exercised  as  not  to  interfere  with  the  lessee' s  bene- 
ficial enjoyment  of  the  lands  included  in  the  lease.  (^) 

§  36^.  Where  the  terms  of  the  contract  are  originally 
uncertain,  but  the  contract  has  been  acted  on,  and  a  user 
and  course  of  dealing  have  existed  between  the  .parties 
which  gives  certainty  to  what  was  originally  uncertain,  the 
court  has,  in  some  cases,  had  regard  to  this  as  removing 
the  original  difficulty.  (^) 

§  «tO«t.  The  mere  fact  of  indefinite  words,  such  as  "e^ 
ccBtera^'^  being  used  in  a  contract  does  not  necessarily  make 
it  too  uncertain  for  performance.  Such  words  may  be  un- 
derstood with  sufficient  certainty  by  reference  to  the  words 
to  which  they  are  added  and  the  surrounding  facts  of  the 
case»(i)    Again,  where,  by  the  contract  for  a  lease,  the  ten- 

(c)  Great  Northern  Railway  Co.  v.  Man-  4  Jur.  N.  S.,  183  (Stuart.  V.  C);  S.  C,  2  De 
Chester,  Sheffield  and  Lincolnshire  Railway    G.  «&  J.,  559,  and  supra,  §  318. 

Co.,5  DeG.  &  Sm.,138.  (g)  Jenkins  v.  Green  (\o.  1),  27  Beav.,  437; 

(d)  5  De  G.  &  Sm.,  U9.  and  see  supra,  §  329. 

(e)  Per  Turnf^r,  L.  J.,  in  South  Wales  Rail-  (h)  Oxford  v.  Provand,  L.  R.  2  P.  C,  135. 
way  Co.  V.  Wythes,  5  De  G.  M.  &  G.,  888;  See,  also,  Laird  v.  Birkenhead  Railway  Co., 
Bupra,  §349.  Johns.,  500. 

(/)  S<iundersoHV.Cockermoath  and  Work-  (i)  Cooper  v.  Hood,  26  Beav.,293;  Powell 
Ington  Railway  Co.,  11  Beav,,  497;  affirmed  v.  Lovegrove,  8  De  G.  M.  &  G.,  357;  Parker 
by  Lord  Cottenham.    See  Parker  v.  Taswell,    v.  Taswell,  2  De  G.  «fc  J.,  559. 


UNCEKTAINTY    OF   TJIE    CONTRACT.  177 

ant  was  to  do  certain  specified  works,  and  "other  works 
upon  the  property,  at  a  total  estimated  cost  of  about  £150, 
and  the  specified  work  were  such  as  woukl  evidently  cost 
nearly  that  sum,  the  court  considered  the  "other  works" 
to  be  of  such  a  trifling  description  that  their  being  left  un- 
defined was  not  a  ground  for  refusing  specific  perform- 
ance, (y) 

§  364.  On  the  ground  of  uncertainty,  the  court  has  re- 
fused specifically  to  perform  marriage  articles  prepared  by 
a  Jewish  rabbi  in  an  obscure  form,  said  to  prevail  amongst 
German  Jews  ;(^')  also,  a  contract  for  the  sale  of  land,  where 
there  was  a  doubt  as  to  the  identification  of  a  plan  to  be  in- 
corporated into  the  contract. (^)  In  another  case  the  court 
refused  to  interfere  in  respect  of  an  engagement  by  the  de- 
fendant, Mr.  Kean,  to  perform  at  a  theatre. (m)  "Independ- 
ently of  the  difl[iculty  of  compelling  a  man  to  act,"  said 
Shad  well,  V.  C,  "there  is  no  time  stated,  and  it  is  not 
stated  in  what  character  he  shall  act ;  and  the  thing  is  alto- 
gether so  loose  that  it  is  perfectly  impossible  for  the  court 
to  determine  upon  what  scheme  of  things  Mr.  Kean  shall 
perform  his  agreement." (ti)'  And  where  a  vendor  had 
agreed  to  sell  an  estate  with  a  reservation  of  "the  necessary 
land  for  making  a  railway  through  the  estate  to  Prince 
Town,"  Jessel,  M.  R.,  held  that  the  contract  could  not  be 
enforced  by  the  purchaser,  (o) 

§  365.  So,  again,  where  the  contract  is  discrepant  with 
itself,  or  there  are  two  difi'erent  contracts  relating  to  the 
same  subject-matter,  the  court  will  generally  refuse  siDecific 
performance.  (_29)     In  a  case,($')  where  an  offer  was  made  to 

(j)  Baumann  v.  James,  L,.  R.  3  Ch.,  508.  (p)  Callaghan  v.  Callaghan,  8  CI.  &  Fin., 

(k)  Franks  v.  Martin,  1  Eden,  309.  374. 

(I)  Hodges  V.  H  )rstall,  1  Russ.  &  M.,  116.  (g)  Taylor  v.  Portington,  7  De  G.  M.  &  G., 

Distinguish  Naylor  V.  Goodall,  26  W.R.,  16-2.  328;  cf.  Norris  v.  Jackson.  1  J.  &  H.,319; 

(tn)  Kemble  v.  Kean,  6  sim.,  333.     Cf.  Ghil-  Samuda  v.  Lawford,  4  Giff,,  42;  Gardner  v. 

lis  V.  McGhee,  13  Ir.  Ch.  R.,  48.  Fooks.  15  ^V.  R.,  388;  Dear  v.  Verity,  17  W. 

(«)  6  Sim.,  337.  R.,  567. 

(o)  Pearce  v.  Watts,  L.  R.  20  Eq„  492. 

'  See  Sanquirico  v.  Benedetti,  1  Barb.  Sup.  Ct.  Rep.,  315.  In  Hambiin  v. 
Dinneford,  2  Edw.  Ch.,  529,  where  a  theatrical  performer  had  contracted  to 
perform  at  one  theatre,  and  at  no  other,  the  court  refused  to  restrain  him  from 
performing  at  another  theatre  in  violation  of  his  agreement.  Cases  of  this 
nature  come  strictly  under  the  head  of  contracts  to  do  personal  acts;  and 
although  no  line  of  distinction  between  contracts  relating  to  property  and  agree- 
ments for  personal  services  can  be  established  to  be  of  general  utiUty,  yet, 
where  the  contract  has  been  strictly  one  to  perform  acts  alone,  there  are  but  few- 
cases  in  which  they  have  been  actively  enforced.  See  Kemble  v.  Kean.  6  Sim., 
333.    In  Sanquirico  v.  Benedetti,  1  Barb.   Sup.  Ct.  Rep.,  315,  Edwards,  J., 

12 


178        FKY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

take  a  house  for  a  specific  term  and  at  a  certain  rent,  if  put 
into  tliorougli  repair,  and  stating  also  that  the  drawing 
rooms  would  be  required  to  be  handsomely  decorated  ac- 
cording to  the  present  style,  and  making  some  further 
requirements  as  to  painting,  and  the  offer  was  accepted, 
the  court  of  appeal  in  chancery,  reversing  the  decision  of 
Lord  Rom  illy,  M.  R.,  dismissed  the  bill  on  the  ground  of 
the  uncertainty  imported  into  the  contract  by  the  expres- 
sions in  the  offer  as  to  repairs.  Where  a  contract  was  for 
the  purchase  of  "the  land  required"  for  the  construction 
of  a  railway,  at  so  much  per  acre,  and  the  contract  contained 
provisions  agreed  on  between  the  land  agents  of  the  coni- 
pany  and  the  vendor  as  to  roads,  culverts,  etc.,  etc..  Lord 
Romilly,  M.  R.  (following  the  decision  of  Turner,  V.  C,  in 
Webb  V.  Direct  London  and  Portsmouth  Railway  Co.,[r] 
then  unreversed),  held  that  a  surveyor  going  upon  the 
ground,  and  having  the  contract  in  his  hand,  could  accu- 
rately ascertain  the  land  to  be  taken,  and  that  the  terms  of 

(r)  9  Ha.,  129;  1  De  G.  M.  &  G.,  521. 

said,  "Although  there  may  be  cases  in  which  a  court  of  equity  will  decree 
specific  performance  of  a  contract  for  personal  services,  still  this  is  not  one  of 
that  character.     The  difficulty,  if  not  the  utter  impracticability,  of  compelling 
a  specific  performance  of  the  contract  set  forth  in  the  bill,  is  a  conclusive  reason 
why  this  court  should  refuse  its  interference."     Walworth,  Ch.,  in  De  Riva- 
finoli  V.  Corsetti,  4  Paige,  270,  in  representing  the  difficulties  attendant  upon 
the  enforcing  of  contracts  of  this  nature,  says,  "I  am  not  aware  that  any  offi- 
cer of  this  court  has  that  perfect  knowledge  of  the  Italian  language,  or  pos- 
sesses that  exquisite  sensibility  in  the  auricidar  nerve  which  is  necessary  to 
understand,  and  to  enjoy  with  a  proper  zest,  the  peculiar  beauties  of  the  Italian 
opera,  so  fa.scinating  to  the  fashionable  world.     There  might  be  some  difficulty, 
therefore,  even  if  the  defendant  was  compelled  to  sing  under  the  direction  and 
in  the  presence  of  a  master  in  chancery,  in  ascertaining  whether  he  performed 
his  engagement  according  to  the  spirit  and  intent.     It  would  also  be  very  diffi- 
cult for  the  master  to  determine  what  effect  coercion  might  produce  upon  the 
defendant's  singing,  especially  in  the  livelier  airs;  although  the  fear  of  impris- 
onment would  unquestionably  deepen  his  seriousnessncss  in  the  graver  parts  of 
the  drama."     There  are  cases,  however,  where  the  court  has  interfered  we^^a- 
tively,  but  they  have  been  in  the  nature  of  a  partnership.     "Thus,  in  the  case 
of  a  theatre  considered  as  a  partnership,  a  contract  with  the  proprietors  not  to 
write  dramatic  pieces  for  any  other  theatre  is  valid,  and  a  violation  of  it  will 
be  restrained  by  injunction.     As  was  intimated  by  Lord  Eldon  in  that  case,  it 
is  not  unreasonable  that  an  actor  and  a  writer  for' the  stage  should  engage  for 
the  talents  of  each  other;  and  that  neither  should  write  or  act  but  for  the  thea- 
tre in  which  they  are  jointly  interested."     Willard's  Eq.  Jur.,  277.     But  this 
partiienliip  must  exist  between  the  parties ;  and.  if  there  be  none,  ' '  and  the 
defendant  has  violated  his  engagement  to  one  theatre,  and  formed  a  conflicting 
engagement  with  another,  a  court  of  equity  will  not  interfere  either  actively, 
to  compel  performance  of  one  contract,  or  negatively,  to  prevent  the  perform- 
ance of  the  other."     See  the  cases  of  Morris  v.  Coleman,  18  Ves.,  4^7;  Clark 
V.  Price,  2  Wilson,  157;  Waters  v.  Taylor,  15  Ves.,  10;  Ex  parte  Forde,  7  id., 
617;  Ex  parte  O'Reilly,  1  id.,  112;  Kemble  v.  Kean,  6  Sim.,  333. 


UNCERTAINTY    OF   THE   C'ONTKACT.  179 

the  contract  were,  tlierefore,  sufficiently  ex])licit ;  but  this 
decision  was  overruled  on  appeal,  and  Kniglit  Bruce,  L.  J., 
held  the  language  "too  vague,  too  uncertain,  too  obscure 
to  enable  this  court  to  act  with  safet}"  or  propriety. '"  f 6-) 
A  contract  to  take  the  mines  under  lands  of  A.  at  B.,  B. 
being  neither  a  township  nor  a  parish,  has  also  been  held 
uncertain.  (^) 

§  30(>.  In  another  case,  wdiere  there  was  a  contract  in 
general  terms  for  the  construction  of  a  railway  according  to 
the  terms  of  a  specification  to  be  prei)ared  by  the  engineer 
of  the  company  for  the  time  being,  it  was  held  too  vague, 
obscure  and  uncertain  to  be  enforced  \{;u)  the  like  was  held 
in  the  case  of  a  contract  to  give  the  plaintiffs  accommoda- 
tion for  the  sale  of  their  articles  in  the  refreshment-rooms 
of  the  defendants,  and  to  furnish  them  with  the  necessary 
appliances. (y)  The  like  was  again  held  where  one  partner 
proposed  to  sell  to  the  other  his  share  in  the  business,  and 
that  a  large  portion  of  his  capital  should  remain  in  the 
business,  but  the  writing  did  not  state  how  much,  for  how 
long,  or  at  what  interest,  and  this  proposal  was  accepted. (w) 
And  again,  where  on  the  sale  of  a  piece  of  land  there  wnre 
stipulations  that,  in  the  event  of  there  being  any  coals  or 
ironstone  under  the  land,  a  royalty  of  so  much  per  ton 
should  be  iDaid  thereon  by  the  i)urchaser  to  the  vendoi-,  and 
also  that  any  mines  required  to  be  left  by  a  certain  inilway 
company  were  to  be  paid  for,  as  if  the  same  had  bnen  got- 
ten, out  of  the  money  to  be  received  from  the  railway  com- 
pany;  it  was  held,  with  regard  to  the  latter  stipulation, 
that  it  was  incapable  of  being  worked  out,  inasmuch  as  if 
the  company  bought  the  mines,  the  contingency  whether 
there  was  any  coal  or  ironstone  under  the  land  would  re- 
main undecided ;  and  as  to  the  former  stipulation,  that  the 
parties  seemed  to  have  intended  to  work  it  out  by  a  reserva- 
tion of  mines  to  the  vendor,  and  a  lease  of  them  by  the 
vendor  to  the  purchaser,  but  that  there  was  nothing  to 
guide  the  court  as  to  the  stipulations  to  be  included  in  such 

(s)  Lord  .Tames  Stuart  v.  London  and  North  («)  South  Wales  Railway  Co.  v.  Wythes,  5 

Western  Uailway  Co.,  15  Beav.,  513;  S.  C.,1  De  G.  M.  &  J.,  t«0.                             .  ,   .,  , 

DeG.  M  &  G.,721.    Cf.  Bellaney  V  Knight,  (f)  Pans  Chocolate  Co.  v.  Crystal  l"Hlac« 

10  W  R    '2S9  Co.,  3  Sm.  &  Gif.,  119. 

(0  Lancaster  v.  De  Trafford,  31   L.  J.  Ch  ,  (w)  Cooper  v.  Uood,  '26  Beav.,  293. 
55t. 


180        FRY  OX  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

a  lease,  except  the  rates  of  royalty :  and  the  court  accord- 
indy  declined  to  enforce  the  contract  for  sale.(^) 

Jj  ilttT.  The  same  certainty  will  not  be  required  in  cases 
where  there  is  any  element  of  friiud  as  in  simple  cases  of 
specific  performance  of  a  contract.  Thus  where  A.  agreed 
with  B.  in  elfect  that  if  B.  would  not  try  to  buy  a  certain 
estate,  A.  would  try  to  buy,  and  in  case  of  success  would 
cede  a  portion  of  the  estate  to  B.  at  a  certain  price ;  and 
B.  acted  on  his  bargain  and  allowed  A.  to  purchase  ;  and  A. 
having  purchased  refused  to  perform  his  part  and  set  up  the 
uncertainty  of  the  part  to  be  ceded  ;  the  court  held  that  the 
defense  could  not  avail  and  directed  an  inquiry  to  ascertain 
the  portion  to  be  given  up  and  the  price.  It  seems  that  if 
this  could  not  have  been  ascertained,  B.  might  have  claimed 
the  whole  estate. (?/) 

(X)  Williamson  v.  Wootton,  3  Drew.,  210.  Co.,  3  K.  &  J.,  675;  ftturge  v.  Midland  Rail- 
See  further  as  to  uncertainty,  Harnett  v.  way  Co..  6  W.R.,  2SS;  Jeflfery  v.  Stephens. 
Yielding,  2  Sch.&Lef., 549;  Tatham  v.Platt,  8  id.,  427;   Firth   v.   Ridley,  33  Beav.,   516, 
9  Ha,  6C0;  Taylor  v.  Gilbertson,  2  Drew.,  supra,  §71.                           „  .,.   x^    ,,, 
391;  Holmes  v.  Eastern  Counties  Railway  (y)  Chattock  v.  Muller,  8  Ch.  D  ,  177. 


WANT   OF    FAIRNESS   IN   THE   CONTRACT.  181 


CHAPTER  V. 

OF    THE   WANT    OF    FAIRNESS    IN    THE    CONTRACT. 

§  368.  There  are  iiuuiy  instances  in  which,  though  there 
is  notliinu-  that  actually  amounts  to  fraud,  there  is  neverthe- 
less a  want  of  tliat  equality(a)  and  fairness  in  the  contract 
which,  as  we  have  seen,  are  essential  in  order  that  the  court 
may  exercise  its  extraordinai-y  jurisdiction  in  specific  per- 
formance.' In  cases  of  fraud(&)  the  court  will  not  only  not 
perform  a  contract,  but  will  rescind  it ;'  but  there  are  many 

(a)  As  to  the  equality  which  natural  justice  (b)  Thp  jnris'liction  to  rescind  is.  of  course, 

requires  lo  fiu'l  place  in  contract  see  Gro.  not  co   fined  to  cases  of  actual  Iraua.    See 

tious,  De  Jure  Belli  ac  Pads,  iib.  il,  cap.  12,  per  James,  L.J.,in  Ti)rrance  v.  Bolton,  L  R. 

§8,  et   seq.  !^  Ch..  1-24 

1  No  rule  in  equity  is  more  clearly  estnblished  than  that  upoi]  an  application 
for  a  specific  performance  of  a  coiJtract,  the  court  must  be  satisfied  that  the 
claim  is  reasonable  and  just,  and  the  contract  equal  in  all  its  parts;  if  these 
points  be  not  established  by  the  complainant,  he  will  be  left  to  liis  remedy  at 
law.  Modisett  v.  Johnson.  2  Black.,  481 ;  Seymour  v  Delancey,  3  Cow.,  445; 
Cabeen  v.  Gordon,  1  Hill.  Ch.,  51. 

'  Agreements  will  also  be  decreed  to  be  delivered  up  for  cancellation  upon 
the  ground  of  surprise.  Thus,  in  Willan  v.  Willan.  16  Ves..  72,  wiiich  was  a 
case^concerning  a  lease  with  a  covenant  for  perpetual  renewal,  at  a  fi.xed  rent, 
of  premises  under  a  church,  renewable  upon  fines  continually  increasing,  neither 
party  understanding  the  effect  of  their  contract,  the  agreement  was  ordered  to 
be  canceled.  Twining  v.  Morrice,  2  Bro.  C  C,  S2(],  a  case  to  the  same  elTect, 
was  quoted  by  Lord  Elden.  with  approbation.  And  in  America  the  prmciple 
there  established  has  been  received  and  acted  upon  Gillespie  v.  .Moon.  2  .John. 
Ch.,  598;  Seymour  v.  Delancey,  3  Cow.,  445.  There  appears  to  have  l)een  a 
difference  of  opinion  concerning  the  meaning  which  courts  of  equity  atta(-h  to 
the  word  surprixe,  which  we  have  just  mentioned,  as  atlbrding  a  ground  of  re- 
lief. See  Eden,  Injunc.  (2d  Am.  'ed  ),  21  and  27.  notes.  .Mr  Jeremy  (2  Lq. 
Jur.,  ch.  2,  p.  36())  seems  to  suppo.se  that  there  is  somethmg  technical  in  its 
meaning  Surprise,  he  says,  "  it  seems  is  a  term  for  the  immediate  result  of  a 
certain  species  of  mistake,  upon  which  this  court  will  relieve."  He  also  says 
that  surprise  is  often  used  as  svnonymous  with  fraud;  but  that  "  they  may, 
perhaps,  be  distinsuished  by  the  circumstance,  that  in  instances  to  which  the 
term  fraud  is  applied,  an  vinjust  design  is  presupposed;  but  that  in  those  to 
which  surprise  is  as.siiined.  no  fraudulent  intention  is  lo  be  presumed  i"  ^"e 
former  case,  one  of  the  parties  seeks  to  iiiiure  the  other;  in  the  latter,  both  of 
them  act  under  an  actual  inisconeeptlon  of  the  law."  Mr.  Justice  Story  seems 
to  be  of  the  opinion,  that  this  explanation  does  not  render  the  dehnition  ot  .Mr. 
Jeremy  any  clearer  than  it  was  before;  and  he  proceeds  to  say,  tliat.  "there 
does  not  .seem  anything  technical  or  peculiar  in  the  word  surprise,  as  used  m 
courts  of  equity."  The  common  definiticui  of  Johnson  sunu'ieiitly  explains  its 
sen.se.  lie  defines  it  to  be  the  act  of  taking  unawares;  the  state  of  being  taken 
unawares;  sudden  confusion  or  perplexity.  When  a  court  of  e( pi ity  relieves 
on  the  ground  of  surprise,  it  does  so  upon  the  ground  that  the  parly  has  been 
taken  unawares,  that  he  has  acted  without  due  deliberation,  and  uiuKt  con- 


182         FRY  OX  SPECIFIC  PEKFOliM ANCE  OF  CONTRACTS. 

cases  ill  which  the  court  will  stand  still,  and  interfere  neither 
for  tlie  one  ijurpose  nor  the  other. (c)' 

ij  :Ui9.  Tlie  unfairness  in  question  may  be  either  in  the 
terms  of  the  contract  itself,  or  it  may  be  in  matters  ex- 
trinsic and  the  circumstances  under  which,  it  was  made ; 
with  regard  to  the  latter,  parol  evidence  is  of  coarse  ad- 
missible. (<^)* 

(c)  Per  Lord  Eldon  in  Willan  v  Willan,  16  monds,  1  Cox,  406;  Redshaw  v.  Governor  & 

Ves  ,  83     See  Savage  v   Taylor,  Forr.,234;  Co  of  the  Bedford  Level,  1  Eden,  346. 

Twli'iing  V.  Morrice.  2  Bro.  C.  C  ,  326;  Sav-  (.d)  Davis  v.  Sy monds,  1  Cox,  402 
age  V.  Brocksopp,  18  Ves  ,  335;  Davis  v.  Sy- 


fuscd  and  sudden  impressions.  The  case  of  Evans  v.  Llewellyn,  3  Bro.  Ch., 
150,  is  a  direct  authority  to  this  very  view  of  the  matter.  There  may  be  cases 
where  the  word  surprise  is  used  in  its  more  lax  sense,  and  where  it  is  deemed 
presumptive  of,  or  approaching  to,  fraud.  (1  Fonbl.  Eq.  B  ,  1,  ch.  2,  §  8,  p. 
125;  Earl  of  Bath  and  Montague's  Case,  3  Ch.  Cas.,  56,  74,  103,  114.)  But  it 
■will  be  always  found  that  the  true  sense  of  it  is,  where  something  has  been 
done,  which  was  unexpected,  and  operated  to  mislead  or  confuse  the  parties  on 
a  sudden,  and  on  that  account  has  been  deemed  a  fraud."  Story's  Eq.  Jur., 
§  120,  p.  13i,  note  (1).  It  has  been  said  that  a  decree  in  equity  is  seldom  based 
upon  the  ground  of  surprise  alone;  and  that  there  must  be  other  circumstances 
of  fraud  or  mistake  connected  with  it  in  order  to  become  a  proper  subject  of 
equitable  relief.  This  is  probably  erroneous.  The  basis  of  Lord  Eldon's  de- 
cree in  Willan  v.  Willan  was,  that  the  parties  were  ignorant  of  the  effect  of 
their  agreement.  There  was  no  misunderstanding  in  the  case ;  but  a  total  Idck 
of  under. tiandin;/.  Mutual  misapprehension  of  rights,  as  well  as  the  effects  of  the 
agreement,  may  properly  furnish  in  some  cases  a  ground  of  relief.  For  if  both 
parties  acted  \mder  a  mutual  misconception  of  their  actual  rights,  they  could 
not  justly  be  said  to  have  intended  what  they  did.  Story's  Eq.  Jur.,  §  123; 
Willan  V.  Willan,  10  Ves.,  72;  Anderson  v.  Smith,  I  A.  K.  Marsh.,  51. 

'  Specific  performance  is  a  matter  of  judicial  discretion,  and  not  of  arbitrary 
right;  and  a  court  of  chancery  may  refuse  to  rescind  a  contract,  where  it  would 
refuse  to  enforce  a  specitic  performance  of  it  at  the  suit  of  the  other  party.  It 
is  not  more  binding  upon  tlie  court  to  set  aside  every  contract  that  it  will  not 
specifically  perform,  than  to  perform  every  contract  which  it  will  not  set  aside. 
St.  John  V.  Benedict,  0  John.  Ch.,  Ill;  Minturn  v.  Seymour,  4  id.,  497;  Sey- 
mour v.  Delancey,  6  id.,  222;  Jackson  v.  Ashton,  11  Peters,  229;  McNeil  v. 
Magee,  5  Mason,  244;  Howard  v.  Moore,  4  Sneed  (Tenn.),  317;  Acker  v. 
Phetnix,  4  Paige,  S05;  Revell  v.  Hussey,  2  Ball  &  Bea.,  288;  Clitherall  v.  01- 
givie,  1  Dessau.,  257;  Barker  v.  May,  3  J.  J.  Marsh  ,  436;  Osgood  v.  Franklin, 
2  John.  Ch  ,  23. 

^  Neio  cmitvacA.  inconsisteht  with  former  one.'\  Anew  contract  was  inconsist- 
ent with  and  rendered  impossible  of  performance  by  a  former  one  between  the 
same  parties.  Held,  that  the  first  was  rescinded,  upon  the  principle  that  a  sub- 
sequent act  of  the  Lesrislature  repeals  a  former  act,  the  two  being  inconsistent. 
Paul  v.  Meservey,  58  Me.,  419. 

Written  contract  changed  hy  presumption  of  a  new  contrari.']  Lord  Eldon  said, 
in  Const  V.  Harris,  T.  &  R.,  496,  523:  "In  ordinary  partnership,  nothing  is 
more  common  than  this,  that  though  partners  enter  into  a  written  agreement 
stating  the  terms  upon  which  the  joint  concern  is  to  be  carried  on,  yet  if  there 
be  a  long  course  of  dealing,  or  a  course  of  dealing  not  long,  but  still  so  long  as 
to  demonstrate  that  they  have  all  agreed  to  change  the  terms  of  the  original 
written  agreement,  they  may  be  held  to  have  changed  these  terms  by  conduct." 
See,  also.  Geddes  v.  Wallace,  2  Bligh,  270,  297;  Jackson  v.  Sedgwick,  1  Swanst., 
460;  Smith  v.  Jeyes,  4  Beav.,  505. 

Hew  contract  by  parol;  waiver  of  written.]  Nolwithstandiug  the  original  con- 
tract was  in  writing,  a  new  contract  may  be  made  by  parol,  where  there  has 
been  acts  of  part  performance.     Wallis  v.  Long,  16  Ala.,  738;  see,  also.  Hunt 


WANT   OF   FAIRNESS    IN    THE   CONTRACT.  183 

§  370.  The  fairness  of  the  contract,  like  all  its  other 
qualities,  must  be  judged  of  at  the  time  it  is  entered  into, 
or  at  least  when  the  contract  becomes  absolute,  and  not  by 
subsequent  events  ;(e)  for  the  fact  that  events,  uncertain  at 
the  time  of  the  contract,  may  afterwards  hapjjen  in  a  man- 
ner contrary  to  the  ej«pectation  of  one  or  both  of  the  par- 
ties, is  no  reason  for  holding  the  contract  to  have  been 
unfair.'  "The  period,"  said  the  Irish  Lord  Chancellor 
Manners,  "at  which  the  court  is  to  examine  the  agreement 
between  the  parties  is  the  time  when  they  contracted." (/) 

§  371.  In  the  case,  however,  of  contracts  to  sell  at  a 
price  to  be  fixed  or  any  other  condition  to  be  performed  be- 
fore they  become  absolute,  it  may  be  urged  that  the  time 
when  the  contract  becomes  absolute,  and  not  the  date  of  its 
signature,  is  the  time  to  judge  of  its  fairness.  Unfairness 
in  the  valuation  is  certainly  an  objection. 

§  372.  The  principle  of  judging  of  the  fairness  of  a  con- 
tract at  its  date  applies  to  compromises  and  settlements  of 
family  and  other  questions.  "Where  parties  whose  rights 
are  questionable,  have  oqual  knowledge  of  facts,  and  equal 
means  of  ascertaining  what  their  rights  really  are,  and  they 
fairly  endeavor  to  settle  their  respective  rights  amongst 
themselves,  every  court  must  feel  disposed  to  support  the 
conclusions  or  agreements  to  which  they  may  fairly  come  at 
the  time, (.7)  and  that  notwithstanding  the  subsequent  dis- 
covery of  some  common  error "(7^)  or  a  subsequent  judicial 
decision  showing  the  rights  of  the  parties  to  have  been 
different  from  what  they  supposed,  or  that  one  party  had 
nothing  to  give  up.(/)'     And  the  uncertainty  which  may 

(e)  So  as  to  hardship,  see  infra,  §  398.  (A)  Per  Lord  Langdale,  U.  H.,  in  Pickering 

(/)  In  Revell  v.  Hussey,  2  Ball  &  B.,  2S8.  v.  Pickering,  2  Beav  ,  56;  Frank  v.  Frank,  I 

See  infra,  §  398.  Cas.  in  (Jh..  84 

(g)  Cf.  per  Turner,  L.  J.,  in  WHliams  v.  (i)  Lawton  v.  Campion,  18  Beav.,  87. 

Williams,  L.  R  2  Ch.,  304;  Bucknell  v.  Buck- 

nell,  7  Ir.  ch.  R.,  130.  ^^ 


V.  Barfield,  19  id.,  117;  Adams  v.  Nichols,  19  Pick.,  275.  What  are  parol  con- 
tracts ?  A  verbal  contract,  and  a  writing  not  under  seal,  is  a  parol  contract;- 
they  are  both  on  the  same  footing.  A  verbal  contract  is  of  as  high  a  grade  as 
a  writing  not  under  seal,  and  it  may  be  released,  abrogated,  or  modified  by  aa 
agreement  either  written  or  verbal.  Bishop  v.  Busse,  69  111.,  40;{;  Rhodes  v. 
Thomas,  2  Carter  (Ind. ),  638;  Liuard  v.  Patterson,  'S  Blackf.,  358;  SmiUi  v. 
Addleman,  7  id.,  119;  Woodruff  v.  Dobbins,  7  id.,  582. 

'  Therefore,  fluctuations  in  the  value  of  property,  caused  by  events  subse 
quent  to  the  making  of  the  contract,  will  be  regarded  by  the  court,  if  the  con- 
tract be  fairly  entered  into  at  the  time.     Low  v.  Treadwell,  3  Fau-f.,  441. 

2  Courts  of  equity  will  sustain  agreements  or  compromises  of  this  nature, 
upon  grounds  of  public  policy,  provided  that  the  couchisions  of  the  parties 
have  been  fairly  entered  into,  made  with  deliberation,  and  reasonable  in  thera- 
eelves.     Story's  Eq.  Jur.,  §  121 ;  Pickering  v.  Pickering,  2  Beav.,  31. 


184        fi:y  ox  specific  ivKUFouMANcno  of  contracts 

render  ;i  coini)roniise  fair,  and  therefore  binding,  may  be 
either  in  some  future  and  uncertain  event,  or  the  future 
ascertainment  of  some  event  past  and  therefore  in  itself 
certain,  as,  for  instance,  whether  a  son  was  legitimate  or 
not,(,/)  or  wliether  an  nncle  had  made  a  yjarticular  will  or 
not.(^) 

sj  ;i7;i.  The  principle  just  stated  is,  ])erhaps,  most  fre- 
quently illustrated  by  cases  of  family  arrangement  or  of 
compromise;  but  it  is  applicable  to  contracts  of  whatsoever 
nature.  The  case  of  Parker  v.  Palmer, (Z)  which  came  be- 
fore the  court  in  the  fourteenth  year  of  Charles  IT,  illus- 
trates this.  Parker,  as  it  appears,  had,  during  the  com- 
monwealth, sold  a  lease  which  he  had  from  a  dean  and 
chapter  for  three  lives,  to  Palmer,  the  price  agreed  on  being 
£4,;32().  Subsequently  the  purchaser  agreed  with  the  ven- 
dor that,  if  he  would  abate  him  £420,  he  would  reconvey 
the  lease  whene^'er  the  king  and  dean  and  chapter  were  re- 
stored. The  abatement  was  made,  the  king  and  church 
were  restored,  and  thereupon  the  vendor  sued  for  a  recon- 
veyance, whi(^h  was  accordingly  decreed  by  the  then  master 
of  the  rolls,  and  aflirmed  by  Lord  Clarendon  and  Sir  Or- 
lando Bridgeman.  Again,  where  a  man  agreed  to  sell  for 
£20  an  allotment  thereafter  to  be  made  to  him  under  an 
inclosure,  and  it  turned  out  to  be  worth  £200,  he  was  never- 
theless compelled  to  perform  his  contract  \{7n)  and  so  in  a 
case  before  Leach,  V.  C,  where  he  maintained  a  contract 
entered  into  without  any  fraud  or  concealment,  by  which 
one  partner  agreed  with  the  retiring  partner  to  give  him 
£2,000  for  the  concern,  though  they  knew  the  partnership 
to  be  insolvent,  his  honor  said:  "  Supi)ose  the  case  of -a 
trade  attended  with  great  risk,  one  X)ai'tner  desj)airing,  the 
other  confident  and  willing  to  buy  the  share  of  his  partner, 
and  give  him  £2,000  for  it;  on  what  possible  ground  could 
this  contract  be  invalidated  ?"(7i)  The  cases  in  which  the 
thing  sold  is  described  in  general  terms — as,  for  examj^le,  a 
manor — and  the  extent  and  value  of  it  are  at  the  time  un- 
certain, (o)  and  also  the  cases  in  which  the  vendor  only  sells 
such  interest  in  the  property  as  he  has,  where  that  which 

0')  Siapilton  V.  Slapilton.  1  Atk.,  2.  im)  hnnn.  Itefore  .Tokyll,  M.  R,  cited  in 

0.)  Heap  V.  rons.  9  Ha.,  9j.  Cooth  v.  Jackeon,  6  Ves.,  24. 

V)    1  Cas  in  (Jh.,  42.  („)  Ex  parte  Peake,  1  Ma<l.,  355. 

(o)  Baxeiuiale  v.  Scale,  19  Beav.,  601. 


WANT    OF    FAIRNESS    IN   THE    CONTIIACT.  185 

is  sold  turns  out  differently  from  the  purchaser's  expecta- 
tions are  analogous  to  those  before  stated. (j??) 

§  374.  But  in  order  to  bring  a  contract  within  the  prin- 
ciple, the  uncertainty  as  to  the  s-ubject-niatter  of  the  con- 
tract must  at  the  time  of  the  contract  have  been  a  real  one 
to  both  parties,  either  from  the  nature  of  things  or  from  the 
state  of  knowledge  of  both  parties.  A  contract  entered  into 
by  one  party  who  knows  that  the  subject-matter  of  the  con- 
tract does  not  exist  with  another  who  does  not  know,  will 
not,  it  seems,  be  executed  by  the  court,  though  its  terms 
may  be  such  as  to  put  the  ignoiant  party  on  his  guard,  and 
to  throw  the  uncertainty  on  him.  In  one  case,  the  particu- 
lars described  the  subject  of  the  sale  as  the  interest,  if  any, 
of  Francis  Norton  in  certain  stock  and  also  in  a  lease,  and 
stated  that  there  was  a  lien  of  £100  on  the  lease,  and  the 
conditions  x^rovided  that  even  if  it  should  Jippear  that 
Francis  Norton  had  no  interest  in  the  premises,  the  pur- 
chaser should  have  no  i-emedy  against  the  vendor  to  compel 
him  to  refund ;  in  consequence  of  the  state  of  certain  part- 
nership accounts  which  was  known  to  the  vendor,  but  which 
the  purchaser  had  no  means  of  ascertaining,  the  interest 
sold  was  of  no  value  whatsoever,  and  was  in  fact  only  ex- 
posed to  sale  for  the  purpose  of  enabling  certain  proceedings 
to  be  taken  against  the  separate  estate  of  Francis  Norton; 
the  vendor  made  no  representations  as  to  the  value,  but  re- 
ceived from  the  i:)urchaser  £150  as  the  purchase  money  ; 
Lord  Hatherley  (then  Wood,  V.  C),  set  aside  the  sale  at  the 
suit  of  the  purchaser,  with  costs  against  the  vendor,  on  the 
ground  that  the  purchaser  was  buying  what  might  be  worth 
nothing,  while  the  vendor  was  selling  what  was  worth 
nothing,  {q) 

§  375.  Further,  the  principle  in  question  will  not  apply 
w^here,  though  the  terms  of  the  contract  may  express  an  un- 
certainty, that  uncertainty  was  not  understood  by  the  par- 
ties to  comprise  the  event  which  actually  happens.  'J  lius 
wdiere  A.  contracted  with  B.  for  the  sale  of  a  manor,  and 
stipulated  that  he  should  not  be  obliged  to  define  its  bound- 
ary, and,  the  manor  turning  out  to  comprise  a  valuable 
property  not  before  known  to  either  party  to  be  part  of  it, 

(»)  See  infra,  §  1287.  (q"^  Smith  v.  Harrison,  26  L.  J   Ch.,412;  5 

W.  R  .  408 


180         FKV  (».N  SI'KCIFIC  PKIIFORMANCE  OF  CONTRACTS. 

the  purchaser,  who  had  previously  souglit  to  repudiate  the 
contract,  liled  his  bill  for  performance,  Lord  Romilly,  M.  R., 
on  consideration  of  the  evidence,  ca,me  to  the  conclusion 
that  neither  party  intended  to  sell  or  buy  a  mere  doubtful 
matter,  and  that  both  jiarties  at  the  time  of  the  contract 
believed  that  it  included  something  different  from  what 
would  then  be  convej^ed  to  the  plaintiff,  if  the  conveyance 
were  to  be  executed  as  he  claimed  it,  and  accordingly  dis- 
missed the  bill,  but  without  costs. (r) 

Jj  JJ7i>.  In  another  case  there  was  a  farm  which  appears 
to  have  contained  181  acres,  and  had  coal  under  it,  which 
was  known  or  believed  to  be  traversed  by  a  fault ;  the  own- 
ers agreed  to  demise  to  A.  the  minerals  under  a  portion 
of  the  farm  whicli  lay  to  the  eastward  of  an  upthrow  fault 
to  tlie  east ;  the  quantity  was  described  as  supposed  to  be  98 
acres  or  thereabouts.  There  were  to  be  a  rent  certain  and 
royalties  on  the  coal  raised.  It  turned  out  that  the  fault 
left  178  instead  of  98  acres  to  the  east  of  it.  The  court  of 
appeal  in  cliancery  thought  it  clear  that  of  such  a  contract 
specific  performance  could  not  have  been _gran ted  at  the  suit 
of  the  lessee. (6-) 

§  377.  In  contracts  to  sell  at  a  price  to  be  fixed  by  a  third 
person,  the  court  would  no  doubt  consider  the  unfairness  of 
the  valuer's  conduct  as  a  bar  to  the  right  to  specific  j)er- 
formance.  So  in  one  case,  where  the  court  came  to  the  con- 
clusion that  it  was  doubtful  whether  the  valuation  had  been 
made  with  a  due  attention  to  accuracy,  Lord  Eldon  refused 
specific  performance  of  the  contract  to  sell.(^) 

§  378.  In  another  case,  where  the  amount  of  rent  to  be 
paid  was  referred  to  arbitrators  and  an  umpire,  one  of  the 
arbitrators  so  far  misconducted  himself  as  to  rest  his  de- 
cision, not  on  his  own  judgment,  but  on  the  will  of  one  of 
the  parties  interested,  and  the  umpire  proceeded  on  the  foot- 
ing of  an  outlay  of  money  by  the  tenant  for  which  the  con- 
tract contained  no  stipulation,  the  House  of  Lords  reversed 
•a  decree  for  specific  performance  pronounced  by  the  Irish 
court  of  chancery,  (i/,) 

§  379.  In  another  case,  where  the  referees  consulted  the 
umpire  and  made  their  award  as  to  the  value  of  coal  upon 

(r)  Baxendale  V  Scale,  19  Beav.,  601.  (t)  Emery  v.    Wase,  8  Ves.,  505.    Distin- 

(«)  Davis  V.  Shepherd,  L.  R.  1  Ch.,  410.  guish  Collier  v.  Mason,  25  Beav  ,  200 

(u)  Chichester  v.  Macintire,  4  Bli.  (N.  S  ),  78. 


WANT    OF   FAIRNESS   IN   THE   CONTRACT.  187 

his  estimate,  though  one  at  least  of  the  referees  thought  it 
wrong,  this  circumstance  was  held  fatal  to  the  vahiation 
and  the  suit. (6^)  Other  objections  were  discussed,  and  it 
was  held  that  the  objection  (1)  that  the  valuers  did  not  ex- 
amine witnesses,  and  (2)  that  one  of  the  valuers  did  not  go 
down  the  mine  but  acted  on  the  report  of  his  grandson, 
were  not  sustainable ;  but  another  objection,  that  the  valu- 
ers did  not  sign  their  award  together,  was  held  entitled  to 
much  weight  though  not  determined  to  be  valid.  This  case 
is  a  very  instructive  one  as  to  the  duty  of  referees  or 
valuers. 

§  380.  In  judging  of  the  fairness  of  a  contract,  the  court 
will  look  not  merely  at  the  terms  of  the  contract  itself,  but 
at  all  the  surrounding  circumstances — such  as  the  mental 
incapacity  of  the  parties,  though  falling  short  of  insan- 
ity, {w)  their  age  or  povertj^  the  manner  in  which  the  con- 
tract was  executed,  the  circumstances  that  the  parties  were 
acting  without  a  solicitor,  that  the  property  was  reversion- 
ary, or  that  the  price  was  not  the  full  value,  (re)' 

§  381.  Therefore  whenever  there  are  evidences  of  distress 
in  the  party  against  whom  performance  is  sought,  (2/)  or  he 
is  an  illiterate  person,  or  whenever  there  are  any  circum- 
stances of  surprise,  or  want  of  advice,  (^)  or  anything  which 
seems  to  import  that  there  was  not  a  full,  entire  and  intel- 
ligent consent  to  the  contract, (a)  the  court  is  extremely 
cautious  in  carrying  it  into  effect.  Still,  it  is  not  the  doc- 
trine of  the  court  that  a  man  cannot  contract  without  his 
solicitor  at  liis  elbow,(5)  or  that  aman  in  insolvent  circum 
stances,  or  in  prison,  is  disabled  from  selling  his  estate ; 

(V)  Eads  V.  Williams,  4  De  G.  M.  &  G.,  674.  (a^  The  nature  of  the  proper  consent  to  a 

(««)  Clarlsson  v.  Hanway,  2  P.  Wms.,  203;  contract  seems  not  incorrectly  expressea  m 

Gartsitle  v.  Isherwood.  1   Bro.    C.   C,  5.58;  the    follONTins  extract:    "  Consens.is  debet 

Bridjrman  v.  Green,  VVilni.  Not..  58,  61      See  esse  (1)  verus  seu  iiiternus  et  nuituus;  (2) 

supra  261  aliquo  siffno  exturno  expressus;  (3)  liber  et 

(x)  Bell  V.  Howarfl.  9  Alod  ,  302;  Martin  v.  plene  deliberatus;  (4)  serius,  cum  ammo  se 

Mitchell,  2  J.  &  W..  413,  423;  Stanley  v.  Rob-  oblieandi."    Mariani  Examen,  §  278_ 

in80D,lR.  &M.,527.  (6)  Llghtfoot  y.  Heron,  3  Y.  &  C.  Ex  .  586, 

iy)  Kerneys  v.  Hansard,  Coop  ,  125;  John-  Habi-rd.ishers' Co.  v.  Isaac,  6  Jur.  (.\.  b.)^ 

son  V.  Nott.  1  Vern.,  271.  611  (Wood,  V.  C). 

(z)  Stanley  v.   Robinson,  1  B.  &  M..  527; 
Helsham  v.  Langley,  1  Y.  &  C.  C.  C,  175. 

'  Where  a  youug  man,  just  arrived  at  his  majority,  contracted  for  the  pur- 
chase of  land,  after  an  examination  utterly  insufficient  to  ascertain  its  value, 
with  a  person  who  was  more  than  a  match  for  him,  from  his  want  of  sagacity, 
experience  and  advice,  and  who  described  the  advantages  of  the  purchase  in 
exaggerated  terms,  for  a  grossly  inadequate  price,  the  court  refused  to  decree 
specific  performance  against  him,  although  there  was  no  fraud,  nor  any  legal 
incapacity  to  contract  on  his  part.     Gasque  v.  Small,  2  Strobh's  Eq.,  72. 


188         FliV  oX  SPECIFIC  PEUIOUMAXCK  OF  CONTRACTS. 

and  if  a  coiitrart  made  under  such  circumstances  will  bear 
the  careful  examination  of  the  court  and  the  full  light  of 
day,  it  will  be  specifically  performed,  (c) 

i;  :i>»-J.  It  is  enough,  generally  speaking,  to  induce  the 
court  to  refuse  i)erfornian{'e,  that  there  are  any  circum- 
stances about  the  making  of  the  contract  which  render  it 
not  fair  and  honest  to  call  for  its  execution ;  it  is  not  need- 
ful that  there  was  any  intentional  unfairness  or  dishonesty 
at  the  time.{d)  A  leading  case  on  this  subject  is  Twining 
V.  Morrice,(e)  where  the  bill  was  by  a  purchaser  against  a 
vendor ;  at  the  sale,  which  was  by  auction,  the  solicitor, 
who  was  known  to  be  the  agent  of  the  vendor,  had  made 
some  biddings  for  the  plaintiff,  which,  from  his  known  re- 
lationship to  the  vendor,  were  thought  to  be  the  biddings  of 
a  puffer,  and  so  damped  the  sale  ;  the  act  was  done  in  inad- 
vei-tence  by  the  solicitor ;  but  as  it  was  done  at  the  plain- 
tiff's Instance,  specific  performance  was  refused  by  Lord 
Kenyon,  M.  E,. 

S;  ;is:j.  Unfairness  arising  from  misstatements  is  consid- 
ered under  the  head  of  misrepresentation  ;(/)  and  cases  re- 
lating to  the  silence  or  suppression  of  a  fact  by  one  party 
are  considered  in  the  chapter  on  fraud. (</)  But  it  seems 
possible  that  there  may  be  cases  where  silence  is  not  fraudu- 
lent, but  yet  creates  such  a  case  of  hardshi})  as  prevents  the 
interference  of  the  court  in  specific  performance.  On  this 
ground  was  put  a  case  where  a  lessee  ol)tained  the  r.^newal 
of  a  lease  on  the  surrender  of  an  old  one,  knowing  and  sup- 
pressing the  fact,  which  was  unknowm  to  the  lessor,  that  the 
person  on  whose  life  the  old  lease  depended  was  in  extremis, 
and  the  court  declined  to  aid  the  lessee. (7i)  And  in  a  case 
before  Lord  Cranworth,  where  the  same  solicitor  acted  for 
both  parties,  but  did  not  disclose  to  both  parties  the  whole 
nature  of  the  dealing,  or  place  his  principals  at  arms'  length 
in  the  transaction,  the  court  refused  to  enforce  specific  per- 
formance at  the  suit  of  the  j)urchaser.(/) 

§  384.  On  the  ground  of  want  of  fairness,  the  court  will 
not  assist  one  party  to  a  contract  specifically  to  enforce  it 
against  the  other,  who  at  the  time  of  entering  into  it  was  in 

(cl  Brlnklev  v.  Hann,  Dru.,  175.  (g)  Part  3.  ch.  13,  §  676,  et  seq. 

(d)  Mortlwk  V.  Mailer,  10  Ves.,  292,  305.  (/i.)  EUar-l  v.  Lord   Llandaff,  1  Ball  &  B,, 

(e)  i  15 ro.  ('    (;.,  3-2G.  241. 

(/■)  lnrra,§U-24,  eiM-q.  (i)  Hes^e  v   Biiaiit.  6  De  G.  M.  &  G.,  623. 


\ 


AVANT   OF   FAIRNESS    IN    THE   CONTRACT.  189 

a  State  of  intoxication,  and  tliat  even  in  the  absence  of  any- 
unfair  advantage  taken  of  his  situation  which  would  induce 
the  court  to  rescind  the  contract. (./)  But  tlie  mere  fact  that 
some  glasses  of  liquor  had  been  drunk  before  the  signing  of 
the  contract  will  not  avoid  it,  if  there  be  nothing  to  show 
that  the  defendant  acted  without  a  full  understanding  of 
what  he  was  doing.  (A')'  In  one  case  Stuart,  V.  C,  r<-fused 
to  allow  a  third  party,  who,  having  got  a  subsequent  trans- 
fer of  tlie  property,  was  the  substantial  defendant,  to  avail 
himself  of  this  defense. (Z/ 

§  385.  One  kind  of  that  unfairness  which  stays  the  inter- 
ference of  the  court  arises  where  tlie  enforcement  of  the  con- 
tract would  be  injurious  to  third  persons.  Thervfore  where 
an  estate  was  settled  in  strict  settlement,  giving  to  the  set- 
tler a  life  estate  and  an  ultima  re  remainder,  and  the  tenant 
for  life  entered  into  a  contract  for  the  sale  of  the  fee,  the 
court  refused  to  allow  the  ]3urcliaser  to  take  the  interest  of 
the  tenant  for  life  with  compensation,  on  the  ground  that  a 
father  and  a  stranger  would  be  likely  to  use  an  estate  with- 
out imx^eachment  of  waste  in  a  different  way,  and  that, 
therefore,  the  sale  might  XDrejudice  the  interests  of  the  per- 
sons in  remainder,  (w) 

§  386.  Again,  where  bankers,  after  a  customer  had  com- 
menced liquidation  proceedings,  secretly  took  a  guarantee 

(J)  Cooke  V.  Clayworth,  18  Ves  ,  12;  Nagle  void,  but  voidable.    Matthews  v.  Baxter,  L. 

V.Baylor,  3  Dr.   &  War.,  60.     In    liuti.r  v.  K.  8  Ex.,  132. 

Mulrihill,  1  Bli.,  137,  a  contract  obtained  by        (,k)  Lighttoot  v.  Heron,  3  Y.  &  C.  Ex.,  596. 
fraud  from  an  intoxicated    party  was  set        (l)   Shaw  v.  Mackray,  1  Sm.  &  G  ,  537. 
aside.    The  contract  of  a  drunken  man  is  not       (m)  Thomas  v.  Deriiog,  1  Ke.,  729. 

1  Pitt  V.  Smith,  3  Camp,  33;  Fenton  v.  Holloway,  1  Stark.,  12G;  Preutice  v. 
Achorn,  2  Paige's  Ch.,  30;  Duncan  v.  McCulloiigh,  4  Serg.  &  Rawle,  484; 
Ford  V  Hitchcock,  8  Ohio,  214;  Broadwater  v.  Darne,  10  Mo.,  277;  Harrison  v. 
Lemon,  3  Black.,  51;  Hotchkiss  v.  Farston,  7  Yerg.,  67;  Callaway  v.  Weather- 
spoor,  5  Ired.  Eq.,  128;  Donelson  v  Posey,  13  Ala.,  752;  Lavette  v.  Sage,  27 
Conn.,  577;  see,  however,  Pittinger  v.  Pittinger,  2  Green  Ch.    15G. 

^  Courts  of  equity,  on  grounds  of  public  policy,  do  not  incline  to  lend  their 
assistance  to  a  person,  wlio  has  obtained  an  agreement  or  deed  from  another, 
in  a  state  of  intoxication ;  and  thej'  are  equally  unwilling  to  assist  the  intoxicated 
party  to  get  rid  of  his  agreement,  or  deed,  merely  on  the  ground  of  his  intoxi- 
cation at  tlie  time.  They  will  leave  the  parties  to  their  ordinary  remedies  at 
law,  unless  there  is  some  fraudulent  contrivance  or  imposition  practiced. 
Story's  Eq.  Jur.,  ^§  231,  232.  Campbell  v.  Kctchum,  1  Bibb.,  40G.  White  v. 
Cox,  3  Hayw.,  82;  Wigglesworth  v.  Steers,  1  Hen.  &  3Iunf.,  70;  Taylor  v. 
Patrick,  1  Bibb.,  168.  It  has  been  supposed,  however,  that  if  a  person  make 
himself  drunk,  with  the  intention  of  avoiding  a  contract  entered  into  by  him 
while  in  that  state,  that  he  would  not  be  permitted  to  carry  this  fraud  into 
eifect.  Pars.  Contr.,  vol.  1,  p.  311.  It  seems  that  the  same  doctrine  that  ap- 
plies to  agreements  is  likewise  applicable  to  wills.  Swinburn  (pt.  3,  §  6)  tells 
us  that,  in  order  to  render  a  will  void,  the  testator  must  be  utterly  deprived  of 
reason  and  understanding;  "otherwise,  albeit,  liis  understanding  is  obscured, 
and  his  memory  troubled,  yet  may  he  make  his  testament,  being  in  that  case. " 


190         FRY  OX  SPECIFIC  PERFOR]\rANCE  OF  CONTRACTS. 

from  his  brother  that  the  bank's  loss  should  not  exceed 
£2, (KM),  and  thereupon  forebore  to  take  proceedings  against 
the  customer  or  to  i)rove  against  his  estate,  the  court,  on 
the  ground  that  this  arrangement  tended  to  give  the  bankers 
an  unduH  advantage  over  the  other  creditors,  dismissed  a 
bill  iiled  by  the  bankers  to  eiiforce  specific  performance  of 
the  guarantee.  (/?) 

g  387.  If  a  voluntary  settler  enters  into  a  contract  to  sell 
the  estate  and  brings  ah  action  to  carry  the  contract  into 
execution,  tlie  court  will  not  generally  assist  him  thus  to 
override  the  settlement  and  prejudice  the  interests  of  the 
persons  claiming  under  it  ;(o)  but  it  seems  that  if  the  pur- 
chaser is  willing  to  complete  on  having  a  good  title  shown, 
and  his  only  objection,  the  existence  of  the  voluntary  set- 
tlement, is  one  that  he  can  remove  by  completing  the  pur- 
chase, the  general  rule  will  not  apply.  (^) 

§  388.  The  court  will  not  generally  exercise  its  extraordi- 
nary power  in  compelling  a  sj^ecilic  performance,  where  to 
do  so  would  necessitate  a  breach  of  trust,  or  of  a  prior  con- 
tract with  a  third  person,  (5')  or  would  compel  a  person  to  do 
what  he  is  not  lawfully  competent  to  do — partly,  as  it  seems, 
on  the  ground  of  the  unfairness  and  illegal  taint  of  such  a 
contract  in  itself,  and  partly  of  the  hardship  to  which  it 
would  expose  the  person  forced  to  execute  it.  The  plaintiff 
*'must  also,"  said  Lord  Redesdale,  "show  that,  in  seeking 
th.e  performance,  he  does  not  call  upon  the  other  party  to 
do  an  act  Avhich  he  is  not  lawfully  competent  to  do  ;  for,  if 
he  does,  a  consequence  is  produced  that  quite  passes  by  the 
object  of  the  court  in  exercising  the  jurisdiction,  which  is 
to  do  more  complete  justice. "(r) 

§  380.  Therefore,  Avhere  trustees  enter  into  a  binding 
contract  for  a  sale  under  a  i)ower,  but  one  so  disadvantage- 
ous as  to  be  a  breach  of  trust,  the  court  will  not  specilically 
perform  the  contract  ;(.s)  and  so,  again,  where  trustees  for 
sale   for  the  benefit  of  creditors  made  a  sale  by  auction, 

(n)  MiKewan  v.  Sanderson,  L.  R.  20  Eq.,  Cf.  MulhoUand  v.  Mayor  of  i'.elfast,  9  Ir.Ch. 

65.     CI.  Ue  Cordova  v.  De  Cordova,  4  App.  K.,  204,  215. 

C.,(m.  (r)  liaruett  V.  Yielding,  2  .Sch  &  Lef.,  553. 

(o)  Johnson  v.  I.egard,  T.  &  R.,2S1 ;  Smith  See  B-rne  v.  Actoii,  1  Bio.  P.  C,  186;  Toison 

V.Garland,  2  Mer.,  123;  Clarke' v,   Willott,  v.  Sheard,  5  Cli.  D.,  19;  Oceanic  Steam  Navi- 

L.  R.  7  Ex.,  :51S.  gation  Co.  v.  Sutherbury,  16  id.,  230;  Mans- 

(p)  Peter  v.  M.  oils.  L.  R.  11  Eq  ,  391.  The  tieUl  v.  Childerhouf  e,  4  id.,  82. 
difficulty  of  being  quite  sure  that  the  settle-  (»)  Mortlook  v.  Buller,  10  Ves.,  292  Ac- 
meut  has  not  bi  en  m;ide  good  by  some  ex  oordingly,  Bridger  v.  Rice,  1  J.  &  W.,  74; 
post  facto  matter,  will,  it  is  conceived, usual-  Wood  v.  Richardson,  4  Beav.,  174;  Maw  v. 
ly  deter  purchasers  from  being  willing  to  Topham,  19  id.,  57t>.  See,  also.  Hill  v.  Buck- 
complete     .•>ee  infra,  §  871.  ley,  17  Ves.,  394;  Neale  v.  Mackenzie,  1  Ke., 

(q)  VVillmott  V.  Barber,  1.^)  Ch.  D.,  96,  107.  474;  Rede  v.  Oakes,  4  De  G.  J.  *;  S.,  505. 


WANT   OF   FAIRNi:ss    IX   THE   CONTRACT.  191 

under  circumstances  of  improvidence  and  likely  to  prejudice 
the  owner  of  the  estate,  for  the  sake  of  immediately  realiz- 
ing money  to  pay  his  creditors,  the  court  i)ursued  the  same 
course. {I)  And  where,  on  the  sale  of  trust  i)roperty,  it  was 
agreed  that  the  purchaser  should,  out  of  the  purchase- 
money,  retain  a  private  debt  due  to  him  from  the  trustee,  a 
demurrer  to  a  bill  by  the  trustee  was  allowed. (7O  Again, 
where  trustees  entered  into  a  contract  for  a  lease  which  was 
in  excess  of  their  power  ;(/)  and,  again,  where  they  entered 
into  a  covenant  for  renewal  which  was  ultra  circs,  the 
court  on  this  ground,  in  both  cases,  refused  specific  per- 
formance, (-z^) 

§  390.  Where  trustees  for  sale  misrepresented  the  value 
of  the  property,  when  they  had  the  means  in  their  power  of 
stating  it  correctly,  and  the  conditions  of  sale  stipulated  for 
compensation  on  either  side  ;  one  of  the  grounds  on  which 
the  House  of  Lords  reversed  a  decree  for  compensation  was, 
that  the  court  would  not  give  effect  to  a  condition  which 
would  injure  the  cestuis  que  trust,  by  reason  of  the  neglect 
of  the  trustees  in  making  the  misdescription  which  was  the 
ground  for  compensation,  {x) 

§  391.  In  another  case,  the  court  refused  performance  of 
a  contract  for  the  sale  of  leaseholds  by  one  of  two  executors, 
on  the  ground  that,  under  the  circumstances  of  the  case,  it 
would  be  an  injury  to  the  cestuis  que  trust,  and  expose  the 
executor  to  extraordinary  risk  from  them,  and  that  either 
of  these  grounds  was  sufficient  to  stay  the  interference  of 
the  court.  (2/) 

§  392.  But  where  trustees,  who  had  without  authority 
granted  leases,  put  up  the  property  for  sale  under  conditions 
which  expressly  provided  that  no  objection  sliould  be  made 
in  respect  of  such  leases,  and  that  the  purchaser  should  take 
subject  to  such  interests  as  the  tenants  might  be  entitled  to 
thereunder,  the  court  held  the  purchaser  precluded  from 
objecting  on  the  ground  of  breach  of  trust,  (r)     It  is  con- 

(0  Orel  V.  Nopl,  5  Ma.l  ,  4:58.  firmed.  7  De  G.  M    &  G..  399.    See,  also. 

(u)  Thonipsou  v.  ]i(ack»toiie,  6  Beav  ,  470.  Magrane  v.  AnliU.l<1.  I  Oow.  U17.  Trappes 

(V)  Harnett  v.  Yielding,  -1  >ch   &  Lcr.,  549.  v.  Lol.b,  IC  W.  li.,  U,  ;  N.iy  or  v.  «.,oodall. -Jt, 

AccorUlnKly  B}  rne  v.  AClou.  1    Uro.  1'.  C,  id.,l(>J.    hut  in  IJarrt-tt  v.  Kli.g.  •-' Mn.  A  GU., 

J86  6  J      J  4;j^  Stuart,  V.   C.  compelled   trustees  of  a 

(to)  Bellringer  v.  Blagrave,  1  Dc  G.  &  ss,  63.  Koad  to  complete  a  contract  lor  >»le  which 

IX  )  White  V   Cudiiou.  8  C.  &  Fin..  700;  re-  hail  been  ma<fe  in  lorgellulness  oi  a  statutory 

versinK  S  C.  s   «  ,  Cudden  v.  Cartwright,  4  right  of  preemption,  and  might  expose  tliem 

Y   &  C   Ex  .  25     See  lufta,  §  1'2«1.  to  an  action  lor  damages. 

\y)  sineeVby  v.  Thorn.  1  Jur.  (xN.  S  ),  536.  be-        (s)  Micholls  v.  Corbclt,  34  Bcav.,  3,6;  3  De 

fore  Lord  Hatherley  (then  U  ood.  V.  C),  af-  G.  J.  &  S..  lt>. 


I 


192         FUV  ox  SI'KCIFIC  PEllFOUMANCE  OF  COXTKACTS. 

reived,  however,  tliat  trustees  generally  cannot  by  contract 
prevent  the  operation  of  the  court's  usual  unwillingness  to 
enforce  any  transaction  resulting  in  injury  to  third  persons. 

ij  ti9:t.  Even  where  there  is  nothing  amounting  to  a  dis- 
tinct breach  of  trust  the  court  will  be  delicate  of  interfering 
against  trustees ;  so  that  where,  in  a  contract  for  sale  by 
them,  there  is  any  want  of  a  business-like  character,  the 
court  will  not,  it  seems,  interfere,  unless  the  price  be  shown 
to  be  equal,  or  more  than  equal,  to  the  value  of  the  prop- 
erty. («)' 

§  301.  The  doctrine  does  not  apply  only  to  persons 
standing  in  the  position  of  formal  trustees,  but,  it  seems, 
to  all  cases  of  trust  and  confidence.  So,  that  if  a  con- 
tract were  the  result  of  a  gross  breach  of  duty  by  an  agent 
towards  his  principal,  the  court  would  not,  it  seems,  enforce 
the  consequences  of  that  act.(&)  And  so,  railway  directors 
having  duties  towards  the  shareholders,  the  court  will  not 
enforce  any  contract  amounting  to  a  breach  of  duty  to  the 
prejudice  of  all  or  any  of  the  shareholders  at  the  instance  of 
a  plaintiff  cognizant  of  the  circumstances,  (c) 

§  :i95.  The  court  has  on  this  ground  not  only  refused 
specific  performance,  but  in  a  case  where  the  purchaser 
must  have  known  that  assignees  in  bankruptcy  were  deal- 
ing without  sufficient  knowledge,  and  that  the  creditors 
who  were  to  ratify  it  were  equally  ignorant,  tjie  court,  on 
the  ground  of  the  breach  of  trust  of  the  assignees  (as  well 
as  other  grounds),  set  aside  the  contract.  (fZ) 

§  396.  In  one  case  Lord  Romilly,  M.  R.,  took  into  con- 
sideration the  injury  likely  to  arise  to  the  public  from  the 
specific  performance  of  a  contract  relating  to  the  level  of  a 
railway,  and  on  the  ground  of  that  injury  refused  to  compel 
the  company  to  lower  the  level  of  their  line.  But  the  case 
was  reversed  on  appeal,  (e) 

(a)  Goodwin  v.  Fielding,  4  De  G.  M.  &  G.,  Co.,  4  De  Q.  M.  &  G.,  115;  affirmed,  and  this 

90.  principle  approved,  6  H.  L.  C  ,  113. 

(6)  Mortlock  v.  Buller,  10  Ves  ,  292,  313.  (d}  Turner  v.  Harvey,  Jac  ,  169. 

(c)  Shrewsbury  and  Birmingham  Railway  (e)  Raphael  v.  Thames  Valley  Railway  Co., 

Co.  V.  London  and  North  Western  Railway  L.  R.  2  Eq.,  37;  2  Ch.,  147. 

'  But  where  a  trustee  sells  property,  having  authority  so  to  do,  in  order  to 
invest  the  proceeds  more  advantageously,  he  must  exercise  his  opinion  fairly 
and  honestly ;  and  if  it  appears  that  he  was  swayed  by  private  interests  and 
selfisl^  ends,  and  that  the  price  was  utterly  disproportionate  to  the  real  value  of 
the  property,  a  court  of  equity  will  not  sanction  the  act.  Wormley  v.  Worm- 
ley,  8  Wheat.,  421. 


IIAKDSIIII'    OF   TlIK    (•(»NTI:A('T.  V.i'S 


I 


CHAFPER  VI. 

OF   THE   JIAKDSIIII'    OF   TlIK    ( ONTILVCT. 

§  397.  It  is  a  well-established  doctrine  that  the  court  will 
not  enforce  the  specific  performance  of  a  contract,  the  result 
of  which  would  be  to  impose  u,Teat  hardship  on  either  of  the 
parties  to  it ;(«)'  and  this  althougli  the  party  seeking  specific 
performance  may  be  free  from  the  least  impropriety  of  con- 
duct. (/>y 

§  398.  The  question  of  the  hardship  of  a  contract  is  gen- 
erally to  be  judged  of  at  the  time  at  which  it  is  entered  into; 
if  it  be  then  fair  and  just  and  not  productive  of  hardship,  it 
will  be  immaterial  that  it  may,  by  the  force  of  subsequent 
circumstances  or  change  of  events,  have  become  less  bene- 
ficial to  one  party, (c)  except  where  these  subsequent  events 

(«)  Per  Lord  Brougham  in  Gould  v.  Kemp,  (c)  Lawder  v.  Blarlifurd.  Heat  ,  .VJi;  Webb 

2  My.  &K.,  308.  v.  Direc.t  Loniton  and  Portt^niouth  Uailway 

(b)  Per  Kindersley.V.  C.inFalckev.  Gray,  Co  ,9  Ha.,  12!)  (S.  C.  on  appual,  I  D.  .\l    A  G., 

4  Drew.,  WO.  521). 

'  Hard  and  unconscionable  bargains  are  not  of  .sucli  a  nature  that  a  court  of 
equity  can  decree  their  performance.  Kimberly  v  Jennings,  (5  Sim.,  340; 
Ohio  V.  Baum,  6  Ham.,  883;  Tobey  v.  County  of  Bristol,  3  Storv,  800;  Canuu- 
day  V.  Shephard,  2  Jones'  Eq.  (N.  C),  224;  Cathcart  v.  Robinson,  5  Pet.,  263; 
Seymour  v.  Delancey,  3  Cow.,  445.  So,  in  Clarke  v.  Rochester,  Loekport  and 
Niagara  Falls  Railroad  Co.,  18  Barb.  Sup.  Ct.  Rep.,  350,  the  court  would  not 
adjudge  a  specific  performance  by  a  railroad  company  of  the  duty  imi)o,><ed 
upon  them  by  the  statute  to  construct  farm  crossings,  but  that  the  plaintitT 
should  be  left  to  his  remedy  for  damages,  in  a  case  where  the'  company  liiul 
constructed  an  embankment  upon  land  conveyed  to  them  by  the  {-.laimitl',  hy 
which  access  to  a  portion  of  his  land,  which  was  of  small  value,  was  cut  off, 
it  appearing  that  the  cost  of  such  a  crossing  would  be  greatly  disproportioued 
to  the  value  of  the  land  to  be  benefited  by  it.  See,  also,  Barnett  v.  Spratt,  4 
Ired  Eq.,  171. 

^  Hardship  of  cunt  met,  \ohen  c%  defense  ?~\  An  action  for  specific  performance 
will,  in  general,  be  dismissed,  where  tlic  defendant  is  able  to  show  lluit  the 
granting  of  the  plaintitf's  prayer  for  relief  would,  under  all  the  eircumstjinces 
of  the  case,  operate  with  unreasonable  hardness  upon  him.  Gould  v.  Kemp, 
My.  &  K.,  308;  Ilylton  v.  Briscoe,  2  Ves.  Sen.,  304;  Wood  v.  Griffith,  1  Swanst., 
54;  Kimberly  v.  Jennings,  6  Sim.,  340;  Talbot  v.  Ford,  13  id..  173;  Seymour 
V.  Delancy,  3  Cow.,  485;  C'anaday  v.  Shepherd,  2  Jones'  Eq.,  224;  Barrett  v. 
Spratt,  4  Irdel.  Eii-,  171;  Huntington  v.  Rogers,  9  Ohio  St.,  511;  Reed  v.  Rud- 
man,  5  Ind.,  409;  King  v.  Hamilton,  4  Peters,  311;  Eastman  v.  Plumer.  40 
N.  H.,  4G4;  Chambers  v.  Livermore,  15  Mich..  381;  Society,  etc.,  v.  Butler, 
12  N.  J.  Eq.,  498;  Margraf  v.  3Iuir,  57  N.  Y.,  155;  Tobcy  v.  County  of  Bris- 
tol, 3  Storey,  800;  Anderson  v.  Andrews,  28  Ala..  432;  Thompson  v.  Tod, 
Pet.,  C.  C,  380;  Gould  v.  Womark,  2  Ala,  83;  Ellis  v.  Burden,  1  Ala.  Sol. 

13 


104        FRY  ON  SPECIFIC  PEKFORMANCE  OF  CONTRACTS. 

havp  Wi^n  in  some  way  due  to  the  party  who  seeks  the  per- 
formance of  the  contract.*  For  whatever  contingencies  may 
attach  to  a  contract,  or  be  involved  in  the  performance  of 
either  part,  liave  been  taken  upon  tliemselves  by  the  parties 
to  it.  It  has  been  determined  that  the  reasonableness  of  a 
contract  is  to  be  judged  of  at  the  time  it  is  entered  into, 
and  not  by  the  light  of  subsequent  events, (<'^)  and  we  have 
already  seen  that  the  same  principle  applies  in  considering 
the  fairness  of  a  contract. (e) 

sj  399.  On  this  ground  it  has  been  decided  in  several 
cases  in  Ireland,  that  where  a  lessee  of  renewable  leaseholds 
covenants  with  his  sub-lessee  for  renewal  without  fine  on 
every  renewal  to  himseK,  and  subsequently  a  renewal  is 
made  to  him,  but  on  terms  far  less  beneficial  than  had  been 
the  custom  at  the  time  he  entered  into  the  covenant,  and 
on  the  expectation  of  the  continuance  of  which  he  had  so 
covenanted,  he  will  nevertheless  be  obliged  to  renew  to  his 
sub-lessee,  and  that  without  any  contribution  towards  the  in- 
creased fine  which  he  has  paid.(/)'  So  where  railway  com- 
panies contract  unconditionally  for  the  purchase  of  land, 
and  by  their  laches  their  i^owers  expire  before  the  comple- 

(0)  Jones  V.  Lees.  26  L.  J.  Ex.,  9.  (/)  Evans  v.  Walshe.  2  Sch.  &  Lef.,419; 

(e;  See  supra,  §  370.  Revell  v  Hussey,  2  Ball.  &  B..  280;  Lawiler 

V.  Blachford,  Beat.,  522. 

Cas.,  458;  Lucas  v.  Burnett,  1  Greene  (Iowa),  510;  Griffith  v.  Frederick  Co. 
Bank,  6  Gill.  &  John.,  424;  Waters  v.  Howard,  I  Md.  Ch.,  112;  Smith  v.  Cran- 
dall,  20  Md.,  48'2:  Daniel  v.  Eraser,  40  Miss.,  507;  Rodman  v.  Zilley,  1  N.  J. 
Eq.,  320;  Stoutenburgh  v.  Tompkins,  9  id.,  332;  Mc Wharton  v.  McMahon,  1 
Oaks  (N.  Y.),  400;  Leigh  v.  Crump,  1  Ired.  Eq.,  299;  Farr  v.  Claddings,  1 
Phila.,  372;  Hall  v.  Ross,  3  Uafw.,  200;  Rice  v.  Rawlings,  Meigs,  496;  East- 
land V.  Vanarsdale,  3  Bibb.,  274;  Wingate  v.  Fry,  Wright,  105;  McCarty  v. 
Kyle,  4  Coldw.  (Tenn.;,  348;  Smith  v.  Wood.  12  Wis.,  382;  Stone  v.  Pratt,  25 

ni.,  25. 

Executed  contract.  ]  Where  an  agreement  has  been  executed  by  the  parties,  a 
court  of  equity  will  declare  it  void  solely  on  the  ground  that  it  is  unconsciona- 
ble. This  is  true  except  in  the  case  of  an  heir  expectant.  Davidson  v.  Little, 
22  Pa.  St.,  245. 

Payment  in.  confederate  money. '\  A  party  contracted  to  convey  real  estate, 
and  received  notes  for  the  purchase  money,  payable  in  confederate  money, 
which,  before  the  maturity  of  the  notes,  became  worthless.  Held,  that  specific 
performance  would  not  be  decreed.     Daughdrill  v.  Edwards,  59  Ala.,  424. 

'  It  is  said  by  Mr.  .lustice  Story  (Eq.  Jur.,  §  750)  that  a  court  of  equity  will 
not  decree  a  specific  performance  of  a  contract,  where  a  change  of  circum- 
stances, or  otherwise,  would  render  the  decree  unconscientious.  It  does  not 
appear,  however,  that  the  cases  of  the  Bank  of  Alexandria  v.  Lynn,  1  Pet.  R. , 
376;  Catlicart  v.  Robinson,  5  Pet.,  264,  and  Harnett  v.  Yielding,  2  Sch.  &  Lefr.. 
554,  quoted  in  support  of  that  view  of  the  case,  at  all  impair  the  rule  as  laid 
down  in  the  text.  See  the  comments  on  Harnett  v.  Yielding,  made  in  Dyas  v. 
Cruise,  2  J.  &  L.,  460;  S.  C,  8  Ired.  Eq.,  407. 

*  See,  also,  Thomas  v.  Burne,  1  Dr.  &  Wal.,  657. 


HAKDSHIP    OF   THE   CONTRACT.  195 

tion  of  the  iDurcliase,  that  circumstance  furnishes  them  with 
no  ground  of  defense,  {g) 

§  400.  This  is  furtlier  well  illustrated  by  the  cases  on 
awards  ;  for  wdiere  the  contract  contained  in  tlie  submission 
is  unfair,  or  conducing  to  hardship,  the  court  will  not  inter- 
fere \{7i)  whereas  hardship  or  unreasonableness  in  the  award 
itself  will  not  be  a  bar  to  the  interference  of  the  court ;  for 
the  submission  and  not  the  award  is  the  contract,  and  un- 
reasonableness in  the  award  is,  therefore,  a  matter  of  subse- 
quent, and  arising  from  the  decision  of  a  judge  whom  the 
parties  themselves  have  chosen,  and  the  risks  attending 
whose  judgment  they  have  taken  on  themselves. (/)' 

§  401.  It  cannot,  however,  be  denied  that  there  are  cases 
in  which  the  court  has  refused  its  interference  by  reasf»n  of 
events  subsequent  to  the  contract.  Thus,  in  The  City  of  Lon- 
don V.  Nash,(y)  where  a  party  had  covenanted  to  re-build 
several  houses,  and,  instead,  had  built  but  two  new  houses 
and  only  repaired  the  others,  but,  in  so  doing,  had  laid  out 
at  least  £2,200,  and  put  them  in  very  good  condition  ;  Lord 
Hardwicke,  holding  that  the  covenant  w^as  one  which,  in 
its  nature,  the  court  could  enforce,  yet  considered  that 
specific  performance  would  entail  so  great  a  loss  and  hard- 
ship on  the  defendant,  and  be  so  useless  to  the  plaintiff, 
that  the  court  w^ould  not  enforce  it,  whether  the  defendant 
had  mistaken  the  sense  of  the  covenant  to  re-build,  or  per- 
haps had  even  knowingly  evaded  it.  And  so  again,  where 
a  mortgagor  had  entered  into  a  contract  to  grant  a  lease, 
•expecting  to  obtain  the  mortgagee's  consent,  but  failed  in 

(g)  Hawkes  v.  Eastern  Counties  Railway  tract,  it  was  conditional  on  the  making  of 

Co.,  IDeG.M.  &  G.,  ■^37,  755;  S.  C.  5  H.  L.  the  line.                             ,    -  t^     r.   ,,    ..  ^  . 

•C.,331,  353.    In  Scottish  North  Eastern  Rail-  (h.)  Mckels  v.  Hancock,  /  De  G.  M.  &  G.' 

way  Co.  V.  Stewart  (3  M acq  ,382,  particular-  301).    See  infra,  §  1553  et.  seq 

ly  401),  may  be  found  expressions  which  ap-  (i)  Wood  v.  Griftith,  1  Sw.,  43;  W  eekes  v. 

pear  to  the  contrary  of  the  statement  in  the  Gallard.  IS  W.  R.,  331 

text.    But  the  real  point  decided  in  the  case  '  '>  s  A»k  .  ^\-i:  S.  C 
was  that,  on  the  true  construction  of  the  con 


1  An  agreement  to  submit  a  question  to  arbitration  depends  on  the  honor  and 
good  faith  of  the  parties.  It  is  revocable,  before  the  award  is  given;  and  it 
cannot  be  made  irrevocable  by  any  agreement  of  the  parties.  But  though 
revocable  both  in  equity  and  at  law,  before  the  award  is  duly  made,  yet  if 
already  made  and  published,  it  is  too  late  for  either  party  to  revoke  the  submis- 
sion without  the  consent  of  the  other.  And  a  declaration  by  one  party  that  he 
will  not  be  bound  by  the  award  is  then  of  no  avail.  Courts  of  equity,  it  is 
said  upon  these  grounds,  refuse  to  enforce  agreements  of  this  nature ;  though 
an  award  made  under  such  an  agi-eement  will  be  carried  into  execution.  Tobey 
V   County  of  Bristol,  3  Story,  800;  Clement  v.  Hadlock,  13  N.  H.,  185. 


19G        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

this,  and  was  in  circumstances  wliicli  rendered  him  practi- 
cally unable  to  redeem,  in  a  suit  instituted  by  the  intended 
lessee,  the  court  refused  specific  performance,  but  granted 
the  alternative  prayer  of  the  bill  for  recis.sion.(^-) 

5j  •I0»2.  Notwithstanding  these  cases  the  general  rule  seems 
to  be,  that  evtMits  subsequent  to  the  contract,  and  not  so  in- 
volved in  it  as  to  render  it  unequal  at  the  time  it  is  entered 
into,  cannot  be  brought  forward  to  show  the  hardship  of 
enforcing  it.  But  where  the  subsequent  events  alleged  for 
this  purpose  are  acts  of  the  plaintiff  himself,  or  events  in 
some  sense  within  his  power,  the  court  may  have  regard  to 
them  in  exercising  its  discretionary  jurisdiction  in  specific 
performance.  There  are  cases  in  which  the  court  has  con- 
sidered that,  by  means  of  these  events,  such  a  change  has 
taken  place  in  the  relative  position  of  the  plaintiff  and  de- 
fendant, as  to  render  it  inequitable  specifically  to  enforce 
the  contract  against  the  latter. ' 

ij  40:{.  The  leading  case  on  this  head  is  the  Duke  of  Bed- 
ford V.  The  Trustees  of  the  British  Museum, (Z)  before  Plu- 
mer,  M.  R.,  and  Lord  Eldon.  Lord  William  Russell  and 
Lady  Rachel  his  wife,  being  in  the  occupation  of  South- 
ampton House  (afterwards  called  Bedford  House)  as  their 
residence,  in  1675  conveyed  to  Mr.  Montagu  adjoining  land, 
for  the  purpose  of  his  erecting  on  it  a  mansion,  with  suita- 
ble appendages  of  gardens  and  offices  ;  and  Mr.  Montagu 
entered  into  covenants  with  Lady  Rachel  Russell  not  to  use 
the  land  in  a  particular  manner,  with  a  view  to  the  more 
ample  enjoyment  of  the  adjoining  lands.  Lady  Rachel 
Russell,  or  those  claiming  under  her,  subsequently  covered 
these  lands,  or  a  considerable  part  of  them,  with  houses, 
and  Southampton  House  was  j)i^^illed  down  to  make  way 
for  streets  and  buildings.     On  a  motion  by  the  Duke  of 

(A)  Costlgan  V.  Hastier,  2  Sch.  &  Lef.,  160.       {I)  2  My.  &  K.,  552. 

'  There  is  no  difference  l)etween  a  contract  unreasonable  when  made,  and 
one  whicli  becomes  so  afterward,  if  the  applicant  be  in  fault.  Garnett  v.  Ma- 
con, 6  Call,  308;  S.  C,  2  Brock.,  185.  Thus,  a  very  great  change  in  the  value 
of  property  is  a  serious  objection  to  a  decree  for  specific  performance,  where 
the  vendor  is  in  fault,  as  it  may  affect  the  arrangements  of  the  vendee  for  a 
compliance  with  the  contract.  Garnett  v.  Macon,  6  Call,  308.  Again,  in 
Forde  v.  Herron,  4  Munf.,  316,  it  is  said  that  a  sale  ought  not  to  be  set  aside 
upon  the  grounds  of  smallness  of  price,  where  the  complainant  was  himself  in 
fault.  And  (Jlay  v.  Turner,  3  Bibb.,  53,  is  a  case  to  the  effect  that  equity  will 
rescind  a  contract,  although  the  parties  cannot  be  reinstated,  if  the  act  of  the 
party  plaintiff  shall  have  prevented  it. 


HARDSHIP    OF   THE   CONTRACT.  197 

Bedfoi'd,  who  claimed  under  Lady  Rachel  Russell,  for  an 
injunction  to  restrain  the  defendants,  who  claimed  under 
Mr.  Montagu,  from  using  the  land  in  a  way  at  variance 
with  the  covenants  of  the  deed  of  IGTo,  Plumer,  M.  R.,  and 
Lord  Eldon  held  that  the  duke  or  his  predecessors  having 
altered  the  state  of  the  property  in  the  way  mentioned,  it 
would  be  inequitable,  unreasonable  and  unjust,  thus  to  en- 
force the  covenants  specifically,  and  the  plaintiff  was  left 
to  his  remedy  at  law.(/7?,)'  And  so,  long  acquiescence  in  a 
variation  from  the  mode  of  renewal,  pointed  out  by  a  cove- 
nant for  that  purpose,  has  been  held  a  reason  for  not  spe- 
■cifically  enforcing  the  covenant  in  its  original  terms.  (7i) 

§  404.  Where  the  conduct  of  the  plaintiff"  subsequent  to 
the  contract  has  led  the  defendant  into  a  trap,  though  the 
plaintiff's  conduct  may  have  been  unintentionally  injurious, 
the  court  will  refuse  specific  performance.  Thus,  in  one  case, 
the  contract  for  sale  of  leaseholds  liable  to  a  covenant  to 
insure  stipulated  that  the  contract  should  be  completed  on 
the  20tli  July;  the  insurance  expired  on  the  24th  June; 
one  of  the  vendors  renewed  for  a  month  only,  to  the  24th 
July ;  the  contract  in  fact  was  not  completed  before  the 
26th  August,  when  the  j)arties  met  for  that  purpose,  and 
it  was  discovered  that  the  insurance  had  expired  and  the 
leaseholds  had  become  liable  to  forfeiture ;  and  the  pur- 
chaser refused  to  comj)lete.  Kindersley,  Y.  C,  held  that 
the  property  was  at  the  risk  of  the  purchaser ;  but  as  the 
vendors'  conduct  had  operated  as  a  trap  to  the  purchaser, 
he  refused  specific  performance.  (c>) 

§  405.  It  would  seem  that,  in  considering  the  hardship 
which  may  flow  from  the  execution  of  a  contract,  the  court 
will  consider  whether  it  is  a  result  obviously  flowing  from 
the  terms  of  the  contract,  so  that  it  must  have  been  present 
at  the  time  of  the  contract  to  the  minds  of  the  contracting 
parties,  or  whether  it  arises  from  something  collateral,  and 
so  far  concealed  and  latent,  as  that  it  might  not  have  been 

(m)  See  per  Knight  Bruce,  L  J,  in  Shrews-        (n)  Davis  v.  Hone,  2  Sch.  &  Lef.,  3U. 
bury  anfl  Birmingham  Kailway  Co.  v  Mour       (,o)  Dowbou  v.  Solomon,  1  Dr.  &  Sm.,  1. 
Valley  Railway  Co.,  2  De  G.  M.  &  G  ,  b-82. 

»  Low  V.  Treadwell,  12  Me.,  441;  Brasbier  v.  Gratz,  6  Wheat.,  528;  Me- 
chanics' Rank  v  Lynn,  1  Pet.,  38;J;  Taylor  v.  Lonf,nvortli.  14  id.,  17;!;  Willard 
V.  Taylor,  8  Wall.,  537;  Marble  Co.  v.  Ripley.  10  id..  o30.  Where  the  subse- 
quent changed  circumstances  were  caused  by  the  plaintitl's  wrongful  acts,  this 
will  be  a  ground  for  refusing  specific  performance.     Stone  v.  Pratt,  2")  111.,  35. 


19S         KKV  ON  SPKCTFIC  PEKFOKMANCE  OF  CONTKACTS, 

tlins  ])resent  to  their  minds. (/v)  It  is  obvious  that  a  far 
lii^^lier  d(\nTee  of  hardship)  must  be  present  in  the  former, 
than  in  the  latter  class  of  cases,  for  it  to  operate  on  the  dis- 
civtioTi  (»r  tlie  court.' 

i;  1015.  'i'he  cases  whicli  liave  been  already  quoted  as 
showin^j;  that  the  hardship  must  be  judged  of  at  the  time 
•  of  the  contract  also  illustrate  another  obvious  i)rinciple, 
namely,  that  where  the  hardship  has  been  brought  upon 
the  defendant  by  himself,  it  shall  not  be  allowed  to  furnish 
any  defense  against  the  specific  i^erformance  of  the  con- 
tract, (^)  at  least  whenever  the  thing  he  has  contracted  to 
do  is  "reasonably  i30ssible."(r) 

§  407.  It  will  not  constitute  a  case  of  hardshij)  that  the 
ultimate  object  Avhich  a  party  had  in  view  in  entering  into  a 
contract  may  have  become  impossible  ;  the  mere  failure  of 
the  purchaser's  speculation  will  not  discharge  him  from  his 
obligations  to  the  vendor.  Thus,  where  one  i:»erson  con- 
tracted with  another  for  the  puichase  of  a  piece  of  land  on 
whicli  he  intended  to  erect  a  mill,  for  which  the  consent  of 
a  corporation  was  requisite,  the  refusal  to  give  this  consent 
furnished  no  defense  to  the  purchaser,  although  he  had,  in 
consequence  of  the  object  he  had  in  view,  given  a  very  high 
price  for  the  ground,  (s)  And  so  also  the  fact  that  a  mine 
which  the  defendant  had  contracted  to  take  for  £1,400 
turned  out  literally  worth  nothing  was  held  to  be  no  de- 
fense to  a  suit  for  specific  performance  of  the  contract. (^) 

§  408.  In  cases  against  companies,  the  court  will  not 
consider  the  hardship  which  may  result  to  the  individual 
members  from  enforcing  a  contract  made  by  the  whole 
body  ;  for  "  the  court  cannot  recognize  any  party  interested 
in  the  corporation,  but  must  look  to  the  rights  and  liabili- 

ip)  See  e.  jr  cases  stated,  §  409.  V.  C  ,  in  Webb  v.  Direct  London  and  Ports- 

(7)  See  per  Lord  Hardwicke  in  Pembroke  moutli  Itailway  Co.,  9  Ha.,  140  ;    per  Lord 

T.  Thorpe.  3  Siv.,  44.3  n  Uomilly,  M.   R  ,   in   Lord  James  Stuart  v. 

(r)  Per  Knight  Uruce,  V.  C  .  in  Storer  v.  London  and  North-VVestern  Railway  (Jo.,  15 

Great  Western  Railway  Co.,  2  Y.  &  O.  G.  C,  Reav.,  52?.  (as  to  ttiese  last  two  cases  see 

^2;  infra,  §  96ri).    Distinguish  Bray  v.  Briggs,  20 

(«)  Adams  v.  Wetre,  1  Bro.  C  C,  567;  Mor-  W  R.,  962. 

ley  V.  Claverlnp,  2'J  Beav  ,  84;  per  Turner,  {t)  Haywood  v.  Cope,  25  Bcav.,  140. 


'  T/ie  mere  naked  hardship  of  a  contract  is  not  in  itself  a  valid  objection  to  its 
enforcement  in  equity,  in  a  case  where  the  contract  is  otherwise  equitably  enti- 
tled to  be  specitically  enforced.  Morrison  v.  Pray,  21  Ark.,  110;  Coke  v. 
Bishop,  :^>  Swanst.,  401 ;  Chubb  v.  Peekham.  13  N.  J.  Eq  ,  207;  Corson  v.  Mul- 
vany,  49  Pa.  St.,  88;  Low  v.  Trcadwcil,  12  Me.,  411;  Eames  v.  Eames,  16 
Mich.,  348;  Lee  v.  Kirby.  104  Mass.,  420;  Addiugton  v.  McDonald,  63  N.  C, 
389;  Morgan  v.  Scott,  26  Pa.  St  ,  51 ;  Nims  v.  Vaughn,  40  Mich.,  336. 


IIAKDSHIP    OF   THE    CONTUA(JT.  199 

ties  of  tlie  corporation  itself  ;"(w)  and  tliongh,  as  we  have 
seen,(?')  the  decision  of  the  case  in  whicli  this  language  was 
used  b}^  Lord  Cottenham  has  been  disapproved  of  in  the 
House  of  Lords,  this  principle  seems  to  be  untouched,  and 
to  rest  on  solid  reasoning. 

§  409.  If  the  execution  of  the  contract  would  render  the 
defendant  liable  to  a  forfeiture,  the  court  will  regard  this  as 
a  circumstance  of  hardship;  so  where  a  man  was  entitled  to  a 
small  estate  under  his  father's  Avill,  on  condition  that,  if  he 
sold  it  within  twenty-live  years,  half  the  putchase  money 
should  go  to  a  brother ;  the  owner  agreed  to  sell  it,  but  Lord 
Hardwicke  held  that  the  hardship  was  sufficient  to  determine 
the  court  not  to  interfere. (?o)  So  where  a  lessee  sold  certain 
lots  of  building  ground,  and  agreed  to  make  a  road,  which  it 
was  found  he  could  not  do  without  incurring  the  risk  of  for- 
feiting a  piece  of  leasehold  land  through  whicli  it  was  to 
pass,  or  of  being  sued  by  the  lessor,  the  court,  granting  the 
purchaser  specific  performance  of  the  contract  for  sale,  re- 
fused to  enforce  this  stipulation,  but  gave  him  compensa- 
tion for  the  non-performance  of  it.(ir)' 

§  410.  But  the  court  will  give  no  effect  to  this  defense 
unless  it  clearly  appear  that  the  forfeiture  will  follow  on  the 
judgment  for  specific  performance.  The  mere  apprehension 
of  such  a  result  is  not  enough.  Nor  will  tlie  court  give 
much,  if  any,  consideration  to  this  defense  where  the  for- 
feiture is  the  result  of  other  acts  of  the  defendant  himself. 
So  where  a  lessee  of  a  theatre,  having,  by  his  lease,  po^ver 
to  lease  forty-one  boxes,  agreed  to  let  a  box  to  the  plaintiff, 
and  in  defense  alleged  that  he  had  already  let  forty-one 
boxes,  so  that  to  perform  his  contract  with  the  plaintiff 
would  work  a  forfeiture,  his  defense  failed. (?/) 

(M)  Per  Lord  Cottenliam    in    E.lwards  v.  (v)  See  supra,  g -234.  .  .  „  ^  _  „    „,,_ 

Grand  Junction  Railway  Co  .  1  My    &  Cr.,  (w)  Fame  y.  IJiown.  cltPd  2  Ves  Sen  ,  3<»7. 

674;  Hawkes  v.  Eastern  Counties  Railway  (x)  Peacock  vPenson,  11  Ueav.i.s. 

Co.,  1  De  G.  M.  &  G.,  737,  754;   cl.  supra,  (y)  Heiling  v.  Lumlt-y,  3  De  G.  &  J.,  4.«. 
§  394. 

'  Forfeiture.^  A  contract  of  sale  provided  that  if  the  vendee  failed  to  make 
his  payments  at  the  time  agreed  upon,  "strictly  and  literally,  without  any  de- 
fault the  contract  shall  become  void,  and  the  ri-lits  and  iiileresis  thereby 
created  cease  and  determine,  and  the  property  revert  to,  and  revest  iii,  (he  vcri- 
dor  without  any  declaration  of  forleiture  or  act  of  re-entry,  or  ^vilhout  any 
right  on  the  part  of  the  vendee  of  reclamation  or  compensation.  Held,  that 
■where  the  notes  given  for  the  purchase  money  were  not  paid,  it  was  competent 
for  the  vendor  to  declare  a  forfeiture  whhout  otfeniig  to  return  the  notes. 
Phelps  V.  Illinois  Cent.  11.  K.  Co.,  63  III,  4G8. 


200         IKY  OX  SPECIFIC  PEUFORMANCK  OF  CONTRACTS. 

J5  411.  To  this  head  of  hardship  we  may,  perhaps,  best 
reftM-  the  eases  wliich  establish  tliat,  wliere  the  vendor  is 
li:il)h-  to  certain  covenants,  and  has  not  expressly  stipulated 
that  thr  puichaser  shall  indemnify  him  a^^ainst  them,  yet 
the  ])inrhaser,  so  soon  as  he  has  notice  of  them,  whetlier 
by  the  particulars  of  sale(^)  or  subsequently  to  the  con- 
tract, (^/)  is  l)ound  to  elect  either  to  rescind  the  contract  or 
to  execute  an  indemnity  to  the  vendor  ;  for  otherwise  the 
vendor  would  lose  his  land  but  retain  his  liability  in  respect 
of  it.  In  the  earlier  of  the  cases  cited,  it  was  only  decided 
that  the  pin-chaser  as  plaintiff  could  not  enforce  specific  per- 
formance without  entering  into  such  indemnity  ;  but,  in  the 
latter,  that  the  vendor  as  plaintiff  might  ])ut  the  purchaser 
to  his  election. 

§  412.  In  one  case  where  trustees  had  joined  their  cestuis 
que  trust  in  a  contract  for  sale,  and  had  personally  agreed 
to  exonerate  the  estate  from  the  incumbrances,  and  it  did 
not  appear  whether  the  purchase-money  would  be  sufficient 
to  discharge  them,  or  what  would  be  the  extent  of  the  de- 
ficiency, the  court  refused  specific  performance  on  the 
ground  of  hardship,  although  the  i:>laintiff'  had  had  posses- 
sion of  the  estate,  and  could  not  be  dt-prived  of  the  benefit 
of  his  contract  without  great  inconvenience.  (6)  In  another 
case  a  mortgagee  with  power  of  sale  had  obtained  a  fore- 
closure decree,  and,  intending  to  sell  as  absolute'  owner,  en- 
tered into  a  contract  for  sale  to  the  i^laintiff.  In  the  contract 
there  was  copied,  by  inadvertence,  from  conditions  of  sale 
of  other  parts  of  the  estate  drawn  up  some  time  Vynfore,  a 
clause  stating  the  vendor  to  be  a  mortgagee  with  power  of 
sale  ;  the  vendor  offered  to  convey  as  owner  under  the  fore- 
closure decree ;  the  purchaser  insisted  on  a  title  under  the 
power  of  sale ;  but  the  court  held  that,  to  impose  on  the 
vendor  the  risk  of  opening  the  foreclosure  decree  l)y  such  a 
sale,  was  a  hardshii)  which  it  would  not  put  on  him,  and 
accordingly  dismissed  the  bill  unless  the  plaintiff  would 
nccei)t  the  conveyance  which  the  defendant  was  ready  to 
execute,  (c) 

ij  4111.  But  wdiere  a  tenant  for  life  had  agreed  to  grant  a 

(2)  Moxh.-iy  V.  Imicrwick,  1  Dc  G.  &  Sin.,        (b)  Wedgwood  v.  Adams,  G  Beav  ,  600. 
7(  «  \.c)  WatBon  v.  Marston,  4  De  U.  M.  JIe,  G.,  230. 

(o)  I.ukey  v.  lMj;g8,  24  L.  J.  Ch  ,  495  iKind- 
erulcy,  V  C). 


IIARDSTITP   OF   THE   CONTIIACT.  2Ul 

mining  lease,  and  to  a  hill  l)y  the  intended  lessee  he  ol)jected 
that  he  was  only  tenant  for  life,  and  that  he  eonld  not  grant 
the  lease  in  question  under  his  power,  and  that  lie  shoidd 
be  accountable  for  waste,  Lord  Nottingham  ai)i)ears  to  have 
considered  this  to  be  no  defense,  and  he  decreed  the  de- 
fendant to  execute  the  contract  so  far  as  he  was  capable  of 
doing,  (('i) 

§  414.  In  one  case  Lord  Hardwicke,  on  the  ground  of 
hardship,  refue-ed  specific  performance  of  a  covenant  to 
leave  buildings  in  rej^air  contained  in  an  ecclesiastical  lease, 
the  fact  of  the  description  of  the  buildings  being  continued 
from  lease  to  lease  without  variation  showing  that  the  build- 
ings in  question  might  not  have  been  in  being  at  the  time  of 
the  making  of  the  lease. (^0  And  where  a  lessee  of  mines 
covenanted  that  if  at  any  time  before  the  expiration  of  the 
lease,  the  lessor  should  give  notice  of  his  desire  to  take  the 
machinery  and  stock  abont  the  mines,  the  lessee  would  at 
the  expiration  of  the  lease  deliver  the  articles  specified  in 
the  notice  to  the  lessor,  on  his  paying  the  value,  to  be  ascer- 
tained by  valuation,  the  court  held  the  covenant  thus  framed 
to  be  so  injurious  and  oppressive  to  the  lessee  that  it  refused 
specific  performance,  and  would  not  interfere  to  prevent  a 
breach  l)y  injunction. (/)  Again,  where  A. ,  in  consideration 
of  B.'s  not  joining  in  barring  an  entail,  agreed  to  convey  to 
him,  his  heirs  or  assigns,  the  fee  of  such  parts  of  the  estates, 
which  were  situate  iu  three  counties,  as  he  or  tliny  should 
choose,  to  the  yearly  value  of  £200;  the  inconvenience  and 
hardship  to  which  such  an  option  might  expose  the  party 
who  had  granted  it  was  one  ground  on  which  specific  per- 
formance was  refused  by  the  House  of  Lords,  (z/)  In  another 
case  the  court  refused  to  enforce  a  contract  for  service  by 
which  a  young  man  placed  himself  almost  entirely  in  the 
power  of  certain  great  traders,  by  whom  he  was  employed 
as  traveler  and  clerk. (A) 

§  415.  Where  a  contract,  if  enforced,  would  make  a  man 
buy  what  he  could  not  enjoy,  the  court  will,  on  the  ground 
of  hardship,  refuse  to  interfere,  as  in  the  case  of  a  contract 

(d\  Cleaton  v.  Gower.  Kinrh,  1C4;  but  see  (A)  Klmberley  v.  .Jennings.  6  SJm..:U't;  this 

the  cases  stated  supra.  §  3S5  et  se.,.  case  has  been  overriatMl    but  on    «no  her 

(e)  Dean  of  Ely  v   Stewart,  '2  Atk  .  44.  point,  by  Luniley  v.  W  agner.  1  Oe  U.  M.  & 

(/)Talbot  V.  Ford,  13  Sim.,  173.  G.,  C04. 
07)  Uamilton  v.  Grant,  3  Dow,  33,  47. 


202         FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

to  sell  a  piece  of  land  to  which  no  way  could  be  shown,  the 
contract  itself  being  silent  as  to  any  right  of  way.(/) 

g  4145.  'i'lie  principle  applies  equally  to  contracts  between 
companies  as  to  those  between  private  individuals ;  and, 
therefore,  where  the  result  of  such  a  contracjt  was  to  divert 
from  its  legitimate  channel  a  considerable  i)ortion  of  the 
profits  of  one  part  of  the  line  of  one  company  for  the  benefit 
of  the  other,  without  securing  any  corresponding  i)orti(m  of 
profits  of  the  other  line,  the  court  refused  to  interfere  by 
way  of  specific  performance,  irrespective  of  the  considera- 
tion whether  such  contracts  were  legally  binding  or  not.(y) 

§417.  The  inadequacy  of  the  consideration  on  the  one 
side  or  the  other  is  a  form  of  hardship  frequently  alleged. 
This  will  be  considered  separately  in  the  next  chapter." 

(t)  Denne  v.  T.ight,  26  L.  J.  Ch.,  459;  8  De  (j)  Shrewsbury  and  Birmingham  Railway 

G.  M    <fc  G.,  774      Consider  Tomlinson  v.  Co.  v.  London  and  North- Western  Railway 

Manchester  and  Birmingham  Railway  Co.,  2  Co.,  4  l)e  G.  M.  &  G.,  115;  S   C,  6  H.  L.  C, 

Rail.  C  ,  1C4, 123.  113. 

'  Where  the  plaintiff  ocamons  the  hardship  of  the  rontract,  it  will  not  be  en- 
forced Garnett  v.  Macon,  6  Call.,  308;  Ford  v.  Heuson,  4  Munf.,  81G;  Tur- 
ner V.  Clay,  3  Bibb. ,  52 ;  Patterson  v.  Marty,  8  Watts,  374 ;  Potts  v.  Dough- 
erty, 25  Pa.  St.,  405;  Whittaker  v.  Bond,  63  N.  C,  290. 


INADEQUACY    OF   THE   CONSIDERATION.  203 


CHAPTER  VII. 

OF   INADEQUACY   f>F   TJIE   CONSIDERATION. 

§418.  We  now  proceed  to  inquire  liow  far  the  inade- 
quacy of  the  consideration  for  a  contract  may  furnish  a 
defense  against  its  specific  performance.  The  inadequacy 
may,  it  is  evident,  in  contracts  for  sale  be  either  on  the  side 
of  the  vendor  or  of  the  purchaser  ;  either  in  the  purcliase 
money  or  in  tlie  thing  sohl ;  or  again,  in  other  cases,  it  may 
consist  in  the  inequality  of  the  contingencies  to  which  the 
contract  has  reference. (a)' 

§  419,  It  has  been  justh^  remarked  that  there  is  a  great 
difference  between  the  defense  grounded  on  the  inadequacy 
of  purchase  money  set  up  by  the  vendor,  and  on  the  excess 
of  it  set  up  by  the  purcliaser ;  for  whilst  the  court  can 
ascertain  the  former  by  a  reference  to  the  general  market 
value  of  such  property,  it  has  no  satisfactory  means  of  de- 
termining what  represents  the  money  value  to  a  particuhir 
individual  of  a  particular  estate. (^) 

§  420.  There  is  no  doubt  that  inadequacy  of  considera- 
tion, when  combined  with  any  case  of  fraud,  misre])resenta- 
tion,  studied  suppression  of  the  true  value  of  the  prop- 
erty, (c)  or  with  any  circumstances  of  oppression,  or  even  of 

(a)  Hannilton  v.  Grant,  3  Dow,  33  (c)  Deane  t.  Rastron,  1  Ans  ,  6-t. 

(b)  Dart,  Vend.,  K83. 

'  Bhamples  of  sufficient  consideration.']  In  Curlin  v.  Heudrieks,  25  Te.x.,  225,  it 
was  held  that  it  was  sufficient,  if  some  profit  is  to  enure  to  the  proniissor,  or  some 
detriment  to  the  promisee.  Where  a  person  is  prevented  from  performing  an 
intended  act  (as  making  gifts,  or  arrangements  hy  will,  or  otherwise)  by  the 
promise  of  another,  a  court  of  equitj'  will  di'cree  specitie  performance  of  such 
promise.  Alead  v.  Randolph,  8  Tex.,  1!»1  ;  Coles  v.  Pilkington,  L.  li.,  lit  Eq., 
174.  A  written  contract  was  made  before,  and  in  consideration  of  marriage. 
Held,  that  the  court  would  aid  in  enforcing  it.  Geuers  v.  Wright,  18  N.  J. 
Eq.,  ;);iO.  In  a  controvers}^  concerning  a  will,  there  was  an  agreement  to  com- 
promise. Held,  that  specific  performance  would  be  decreed,  without  iutjuiry 
into  the  sufficiency  of  the  consideration.  Leach  v.  Forbes,  11  Gray.  .50G. 
Lautl  was  dedicated  to  a  coimty  on  consideration  that  a  certain  town  should  be 
made  the  county  seat.  Held,  that  sucli  contract  should  be  spreifically  enforced 
if  the  town  was  so  made.  Reese  v.  Lee  Co.,  4it  Miss..  C.;}!) ;  see,  also,  Twiss  v. 
George,  33  Mich.,  23;5;  Watsou  v.  Mohan,  20  Ind.,  223;  Thomas  v.  Kyles,  1 
Jones'  Eq.,  302. 


204         lUY  (».\  SPKOIFIC  PEKFOUMANCE  <»F  CONTRACTS. 

in-noraiKva^/)  i^  a  most  material  ingredient  in  the  ciise,  as 
amu'tinu-  the  discretion  of  the  court  in  grantini^-  specific  per- 
formance ;  and,  further,  it  may  materially  concur  in  consti- 
tuting a  casp  for  setting  aside  a  transaction.  Thus,  in  Cockell 
V.  Taylor, (r)  Lord  Romilly,  M.  R.,  set  aside  an  alleged  sale 
of  land  to  the  plaintiff,  where  the  consideration  was  about 
ten  times  the  value  of  the  land— the  purcliase  having  been 
made  the  condition  of  a  loan  v.hich  the  plaintiff  was  very 
anxious  to  negotiate  in  order  to  prosecute  his  claim  in  chan- 
cery to  some  valuable  property,  and  he  being  in  humble 
circumstances  a,nd  illiterate.  "Coupled  vrith  such  circum- 
stances," said  his  lordship,  "the  evidence  of  over-price  is 
of  great  weight,  and  if  the  case  had  stood  here  I  should 
have  been  of  opinion  that  this  transaction  was  one  which 
could  not  stand." (/)  Inadequacy  of  consideration  may 
also  concur  with  other  circumstances  to  show  tliat  the  trans- 
action was  in  the  nature  not  of  a  contract  for  sale  but  of  a 
gift,  in  respect  of  which,  therefore,  the  court  would  not  in- 
terfere, as  it  does  not  decree  the  specific  performance  of 
incomplete  gifts. '(/7)'' 

§  4»21.  The  question,  however,  which  has  been  principally 
dis(nissed,  is  the  effect  on  contracts  of  the  inadequacy  of 
consideration  taken  by  itself  and  abstracted  from  all  other 
circumstances. 

§  43S.   With  regard  to  it  as  a  ground  for  the  setting  aside 

(d)  Young  V.  Clarke,  Prec.  Ch  ,  538;  see,  (e)   15  Beav.,  103 

also,  per  Kindernlfv,  V.  C,  in    Falcke  v.  (/)  15  T.cav..  iir). 

Grav,  4  Orew.,660;  Lewis  v.  Lord  Lechmere,  ig)  CiUUtghan  v.  Callagrhan,  8  CI.  &  tin., 

10Mo<J,5U.  374. 


'  Gifts  of  real  estate.]  Such  gifts  will  be  enforced  with  great  caution,  and  not 
usually  unless  improvements  have  been  made,  and  the  donee  has  taken  pos- 
session by  reason  of  such  gift.  Guynon  v.  McCauley,  o2  Ark.,  97;  Ballard  v. 
Ward.  SI)  I'a.  St.,  358;  Evans  v.  Battle,  19  Ala.,  31)8;  Cox.  v.  fox,  5!)  id..  591; 
Jones  v.  Taylor,  (i  3lieh  ,  3G4.  Ferry  v.  Stevens,  60  N.  Y.  (Ct.  of  App.),  321, 
is  an  instructive  case  on  this  point. 

*  Inadequacy  of  consideration  when  combined  with  unfairness  of  any  kind, 
as  oppression,  imbecility  of  mind,  surprise,  or  undue  advantage  taken,  will 
warrant  the  con.sideration  of  a  court  of  equity.  Gasque  v.  Small,  2  Strobh's 
Eq.,  72;  ^Modisett  v.  Johnson,  2  Black.,  431;  Cathcart  v.  Kobinson,  5  Pet.,  263; 
Cabeen  v  Gordon.  1  Hill.  Ch.,  51;  Bunch  v.  Hurst,  3  Dessau.,  273;  McCor- 
mick  V  Malin.  5  Blackf.,  509;  Brooke  v.  Berry,  2  Gill  &  J.,  83;  Howard  v. 
Edgell.  17  Verm.,  9;  Harri.son  v.  Town,  17  Miss.  (2  Bennett),  237;  Powers  v. 
Hale,  5  Foster  (N  H.),  145.  But  it  has  been  justly  said  that,  in  all  these  cases, 
it  is  the  fraud,  rather  tlian  the  inadequacy  of  price,  which  atlbrds  the  ground 
.for  relief.  They  are  considered  as  cases  of  constructive  fraud,  in  which  the 
Inadequacy  of  the  consideration  is  received  as  evidence.  See  Osgood  v.  Frank- 
hn,  2  Johii.  C  h.,  24,  and  Willard's  Eq.  Jur.,  §  1,  ch.  4,  p.  263. 


INADEQTACY    OF   TIIK   CONSIDERATION.  205 

of  transactions,  the  doctrine  of  the  court  is,  tliat  ina(le(niacy 
of  consideration,  if  only  amounting  to  hardship,  or  even 
great  hardships,  is  no  ground  for  relieving  a  man  "  from 
a  contract  which  he  has  wittingly  and  willingly  entered 
into  ;"(70  but  that  it  may  be  so  enormously  great  as  to  be  a 
conclusive  evidence  of  fraud,  and  that  if  is  then  a  ground 
for  setting  aside  the  transaction  affected  by  it.(/)' 

§  4*1:J.  Regarded  as  a  ground  of  defense  to  a  specilic  per- 
formance, the  doctrine  of  the  older  cases  was,  that  inade- 
quacy of  consideration  was  a  sufficient  ground,  it  being 
regarded— even  where  not  amounting  to  evidence  of  fraud — 
as  a  circumstance  of  hardshij)  which  would  stay  the  inter- 
position of  tlie  court.  Thus,  in  a  case  before  Eyre,  C.  B., 
that  judge  said  that,  independently  of  all  consideration  of 
fraud,  "  the  court  upon  the  mere  considerati(m  of  its  being 
so  hard  a  bargain  will  not  enforce  it."(./)  So,  in  a  case 
where  there  was  a  contract  between  two  men  each  mi i  Juris 
for  the  sale  of  an  estate  wortli  £1(),()00  for  i:0,()()(»  down  and 
£14,000  more,  payable  at  the  death  of  a  man  aged  sixty-four 
or  sixty-five,  and  there  were  no  cii'cumstances  of  i>ressure 
or  circumvention.  Lord  Alvanley,  M.  R.,  refused,  on  a  cross- 
bill, to  set  aside  the  contract ,  but  he  also  refused  specific 
performance  of  it  on  the  ground  of  its  being  a  hard  bar- 
gain. (A:)  And  in  an  earlier  case,  where  a  purchaser  had, 
during  the  South  Sea  mania,  purchased  a  house  under  the 
court  for  £10,600,  and  paid  a  deposit  of  £1,000,  the  pur- 

(h)  Griiath  V.  Spratley,  1  Cox,  383,  388-9;  2  ij)  Tilly  v.  Peers,  cited  by  Sir  S.  Ilomilly, 

Bro.  C.  C.  179;  Fox  v.  Miickreth,2  Dick.,  arg.,  U)  Ves..301.                        __ 

683.    See,  too,  Harrieon  v.  Guest,  0  De  (-i.  M.  (/;)  Day  v.  Newman,  2  Co^.  ...  b.  C  ,  cuea 

&  G.,  4-.>4,  affirmed  in  D.  P.,  8  U  L.  C,  481.  by  air  S.  RomiUy,  arg  ,  10  Yes.,  JOO. 

(i)  Stilwell  V.  Wilkins,  Jac,  280. 


\ 


1  It  would  seem  to  be  equally  the  settled  rule  of  this  country,  that  inadequacy 
of  price  is  to  be  looked  upon  merely  as  evidence  of  fraud ;  tbat  ot  itselt,  it 
affords  no  ground  for  the  interference  of  courts  of  chancery,  \vhicii  have  never 
yet,  in  Enoland  or  America,  attempted  to  fix  the  prices  at  which  owners  may 
dispose  of  their  property.  But  the  consideration  of  a  contract  niay  be  so  grossly 
disproportionate  as  to  amount  to  conclusive  evidence  ottnuul ;  ana  in  lliesc 
cases  only  will  the  agreement  be  set  aside.  Wright  y.  Wilson,  2  ^  org  .  -J-4; 
Green  v.  Thompson,  2  Ired.  Ch.,  3G5;  Butler  v.  Has^cell.  4  Dessau  Ool;  New- 
man v.  Meek,  1  Freem.  Ch.,  441;  White  v.  Flora,  2  Overton.  42b;  llardman  v. 
Burge,  10  Yerg.,  202;  Knobb  v.  Lindsay.  5  Ham  4(,b  Osgood  v  Frajikl  n. 
2  John.  Ch.,  if  Wintermute  v.  Snyder,  2  Green's  Ch..  489;  btubbleheld  v.  Pat- 
erson,  3He;.,  128;  McCormick  v.  Malin.  f.  Blackf.  509;  Juzan  v.  Toulm.n  9 
Ala.,  662;  Delafield  v.  Anderson,  7  S.  &  M.,  630;  Holmes  v.  >  resh  9  Miss 
201.  There  is  a  class  of  cases,  however,  where  the  defendant  is  an  heir  or  ex- 
pectant, in  which  inadequacy  of  price  is  alone  sufticicnt  to  obtain  relief  m 
equity.     Story's  Eq.  Jui-.,  §  336,  and  notes  1,  2,  3,  4. 


200         FRY  ON  SPKOIFIO  PERFORMANCE  OF  CONTRACTS. 

chaser,  sii}>niittiii,u-  to  forfeit  his  deposit,  was  discharged  by- 
Lord  Macclestiekl  on  the  ground  of  the  general  delusion 
which  the  nation  was  under  at  the  time  of  the  contract,  and 
the  iinauinary  values  then  put  by  people  on  estates,  and  this 
in  spite  of  a  most  able  argument  by  Lord  Nottingham,  who 
argiied  on  behalf  of  his  granddaughters  the  plaintiffs. (Z) 

i;  IrJI.  But  ir  seems  now  to  be  established  by  the  de- 
cisions of  Lord  Eldon  and  Grant,  M.  R.,  that  mere  inade- 
quacy of  consideration  is  no  defense  to  specific  performance,' 

(/)  Savile  v.  Savile,  1  P.  Wm8.,'745;  S.  C,  5  Vin.  Abr.,  516,  pi.  25.    See.  also,  Vaughan  v. 
Thomas,  1  Bro.  C.  C,  550. 


>  Inadequate  consideration.^  Mere  inadequacy  of  consideration  is  not,  in 
itself  a  .sufficient  reason  for  refusing  specific  performance  of  a  contract,  and 
furnislies  no  suJlicient  •ause  for  setting  it  aside.  Heywood  v.  I'ope  25  Beav., 
140-  Wliite  V  Flora,  2  Ovurton  (Tenn.).  42G;  Newman  v.  Meek,  1  Frecm.  Ch. 
fMiss)  141-  Wintermute  v.  Snyder,  2  Green's  Cli.,  489;  Eyre  v.  Potter,  15 
How  4->-  Avres  v.  Baumgarteu,  15  III.  444;  Harris  v.  Tyson,  24  Pa.  St.,  347; 
Kidder  v '  Chamberlain,  41  Yt.,  62;  Judge  v.  Wilkins,  19  Ala.,  795;  Charles  v. 
Brady  10  Fla.  133;  Maddox  v.  Simmons,  31  Ga.,  512;  Holmes  v.  Fre.sh,  9 
Mo  201-  Harri.son  v.  Town,  17  id.,  237;  Sheplierd  v.  Bevin.  9  Gill,  32;  Potter 
V  Everett  7  Irod.  Eq.,  152;  Mann  v.  Bctterly.  21  Yt..  326;  Stearnes  v  Beck- 
bam  31  Gratt.  379;  Lee  v.  Kirby,  104  Mass.,  420;  Booten  v  Shefler,  21  Gratt., 
474'Saiter  V.  Gordon,  2  Hill.  Cli.  (S.  C),  121;  Stailton  v.  Miller,  14  Hun,  383; 
S.  C.  aff'd,  58  N.  Y.,  192. 

W/u'>:  iuadequncy  of  consideration  a  defense.]  In  a  case  where  the  inadequacy 
of  the  consideration  is  such  as  to  shock  the  moral  sense  of  mankind,  it  will 
constitute  a  defense  in  an  action  for  the  specific  performance  of  a  contract. 
Fraudulent  contract  should  be  pleaded.  Osgood  v.  Franklm,  2  John.  Ch.,  1; 
Garnett  v.  Macon,  2  Brock..  185;  Fripp  v.  Fripp,  Rice's  Ch.  84;  Hardiraan  v 
Buro-e  10  Yer"-  202;  Juzan  v.  Toulmin,  9  Ala.,  662;  Davidson  v.  Little,  23 
Pa  St  245;  White  v.  Thompson,  1  Dev.  &  Bat.  Eq.,  493;  Burtch  v.  Hoagg, 
Han.  (ilich.),  31;  Rodman  v.  Zilley,  1  N.  J.,  Eq.,  320;  Yiele  ^^  Troy  R.  R. 
Co  2  Bail).,  581;  ^Yestern  R.  R.  Co.  v.  Babcock,  6  Mete,  346;  Hayes  v  Hol- 
lis  8  Gill  357;  Hale  v.  Wilkinson,  21  Gratt.,  75:  Clement  v.  Reid,  9  Sm.  & 
Marsh  535;  Modiset  v.  Johnson,  2  Blackf.,  431;  Graham  v.  Pancost,  30  Pa. 
St.,  89;  Clitheral  v.  OgUvie,  1  Uessau  's  Eq.,  250;  Bunch  v.  Hurst,  3  id.,  273; 
Butler 'v.  Haskell,  4  id.,  651. 

Rule  as  to  inadequacy  of  consideration.']  Where  this  is  relied  upon  as  ade- 
fense  in  an  action  for  the  specific  performance  of  a  contract  brought  against 
the  vendor,  it  must  be  shown  that  it  resulted  from  the  fraud,  surprise,  misrep- 
resentation or  concealment  on  the  part  of  the  purchaser,  or  that  the  purchaser 
took  unconscionable  advantage  of  the  vendor's  weakness  or  ignorance.  This 
is  the  only  safe  rule.  Lowther  v.  Lowther,  13  Yes  ,113;  Wall  v.  Stubbs,  1 
Mad.  81;  Cadman  v.  Harner,  18  Yes.,  10;  "\Yestern  v.  Rus.sell,  3  Y.  &  B  ,  187; 
Luke'y  v  O'Donnel,  2  Sch  c^  Lcf.,  471 ;  Robinson  v.  Robinson,  4  Md.  Ch.,  182; 
Powers  v.  Hale,  25  N.  H.,  145;  Eastman  v.  Plummer,  id.,  478;  Lee  v.  Kirby, 
104  Mass.,  420;  Davis  v.  Parker,  14  Allen,  94;  Todd  v.  Grove,  33  Md.,  188. 

Examples  inhere  the  consideration  was  held  to  he  .^sufficient.]  A  party  agreed  to 
pay  twice  the  value  of  real  property,  but  the  transaction  was  free  from  fraud 
and  he  examined  the  property  himself,  although  most  of  the  land  was  covered 
with  snow.  Held,  that  specific  performance  would  be  decreed  White  v. 
McGannon,  29  Gratt.,  511.  Where  the  vender  sold  as  trustee— held,  that  the 
inadequacy  as  to  price  might  be  set  up  as  a  defense;  but  not  where  the  same 
was  fair  although  afterwards  there  was  an  opportunity  to  sell  at  a  much  greater 
sum.  Goodwin  v.  Fielding,  4  De  G.  M.  &  G.,  90.  A  parent  made  a  contract 
with  bis  son,  to  give  him  all  his  property,  in  consideration  that  the  son  should 


'  INADEQUACY    OF   THE   CONSIDERATION.  207 

unless  it  amount  to  an  evidence  of  fraud,  and  so  would  fur- 
nish a  ground  even  for  cancelling  the  contract.  (?72,)  "  Unless 
the  inadequacy  of  price.''  said  Lord  Eldon  in  one  case,  "is 
siich  as  shocks  the  conscience  and  amounts  in  itself  to  con- 
clusive and  decisive  evidence  of  fraud  in  the  transaction,  it 
is  not  itself  a  sufficient  ground  for  refusing  a  specific  per- 
formance. "(?ij  And  in  an  earlier  case,  where,  a  sale  by 
auction  having  taken  place  for  about  half  the  value  of  the 
estate,  Lord  Rosslyn  had  refused  specific  performance,  Lord 
Eldon,  on  a  rehearing,  although  he  ultimately  decided  the 
case  on  a  question  of  evidence,  doubted  the  principle  of  the 
decree,  and  expressed  an  opinion  that  a  sale  by  auction 
could  not  be  set  aside  for  mere  inadequacy  of  'price. (o)  His 
lordship  also  applied  the  same  principle  in  the  instance  of 
an  annuity  transaction. (jp)  The  doctrine  Avas  adopted  by 
Grant,  M.  R.,  and  Lord  Erskine,  and  is  noAv,  it  is  conceived, 
the  well-established  rule  of  the  court. (^)  An  illustration  of 
it  may  be  found  in  the  case  of  Abbott  v.  Sworder,(r)  where 
an  estate  was  bought  for  £5,000,  the  value  of  which  svas 
considered  by  Knight  Bruce,  V.  C,  to  be  £3,500;  but  this 

(m)  Per  Lord  Eldon  in  Stilwell  v.  Wilklns,  Lord  Erskine  in  Lowther  v.  Lowther,  13  id., 

Jac.,28-2;  cf  Harrison  v.  Ciuest,  6  De  G.  M.  103;  Collier  v.  Brown,  1  Cox,  428;  Rower  v. 

&  G.,  424,  affirmed  in  D   P  ,  S  H.  L.  C  481.  Cooper.  2  Ha.,  408;  Borell  v.  Dann,  2  id  ,451. 

(n)  In  Coles  V.  Trecothick,  9  Ves.,  246.  See,  also,  Griffith  v.  Spratley,2  Bro    C.  C, 

(o)  White  V.  Damon,  7  Ves,  30  179;   1  Cox,  383;  .Stephens  v.  Hothani,  1  K.  & 

(p)  Underbill  v.  Horwood.  10  Ves.,  209.  J.,  571 ;  Holmes  v.  Howes,  20  W.  R.,  310. 

(q)  Burrowes  v.  Lock,  10  Ves.,  470;  per  (?)  4  De  G.  &  Sni.,44S. 

support  bis  parents  during  their  live.s.  Held,  sufficient.  Lester  v.  Lester,  28 
Gratt.,  737;  Lorentz  v.  Lorentz,  14  W.  Ya.,  761. 

Public  sale;  bid  much  under  value.']  Where  a  sale  at  public  auction  has  been 
apparently  fairly  conducted,  specific  performance  will  be  decreed,  unless  there 
is  strong  proof 'of  fraud  or  imposition.  Bun-ows  v.  Lock,  10  Ves.,  470;  Low- 
ther v.  Lowther,  13  id.,  103;  Collier  v.  Brown,  1  Cox,  42G;  Bower  v  Cooper. 
2  Hare,  408;  Borel  v.  Dann,  2  id.,  459;  Gri tilth  v.  Sprightly,  2  Bro.  C.  C,  179; 
S.  C,  1  Cox,  383;  Stephens  v.  Hotham,  1  K.  &  .J.,  571;  Kussell  v.  Stimseu,  3 
Hayw.  (Tenn.),  1;  Newman  v.  Meek,  1  Freem.  Ch  (:Miss.),  141;  Delafield  v. 
Anderson,  7  Smed.  &:  M.,  6:J0;  Ready  v.  Noakes,  29  N.  .1.  I-:q.,  497;  Erwiu  v. 
Parham,  12  How.,  197;  Byers  v.  Surget,  19  How.,  309.  Inadequacy  of  price, 
coupled  with  other  circumstances,  may  be  a  controling  element  in  determining 
whether  a  public  sale  was  fair  or  not.     Benton  v.  Shreeve,  4  Ind.,  66. 

Time  of  the  inadequacy  of  the  consideration.]  The  inadequacy  of  considera- 
tion of  a  contract  sought  to  be  specifically  enforced,  must  be  determined  with 
reference  to  the  time  the  agreement  was  made.  The  date  of  the  contract  should 
be  looked  to,  and  if,  at  that  time,  the  consideration  was  adequate,  it  is  enough. 
Hale  V.  Wilkinson,  21  Gratt.,  75;  Mortimer  v.  Capper.  1  Bro.  C.  C,  156; 
Woodcock  V.  Bennett,  1  Cow.,  711.  See,  however,  where  payment  v\a.s  to  be 
made  in  confederate  money.  Love  v.  Cobb,  63  N.  C,  324;  Hud.><ou  v.  King.  2 
Heisk,  561 ;  McCarty  v.  Kyle,  4  Cold,  349.  See  as  to  price  rendered  inade- 
quate by  laches.  Whittaker  v.  Bond,  56  N.  C,  290.  Where  the  vendor  de- 
clared himself  satisfied,  after  entering  into  the  contract,  the  court  decreed 
specific  performance.     Woodruff  v.  Uargrave,  Wright,  555. 


208         FKV  ON  >1'KCIFIC  PEKFOKMANCE  OF  CONTIiACTS. 

ina(l(Hiu:icy  of  considenition  was  held  both  by  liim  and  by 
Lord  St.  J^ouai'ds  to  be  no  bar  to  speciiic  performance, 
whifli  was  accordingly  decreed  at  the  suit  of  the  vendor.' 

ij  •1*J5.  One  case  before  Kindersley,  V.  C,  must  be  re- 
ferred to,  as  it  appears  to  break,  the  recent  current  of  authori- 
ties. Ills  lionor  there  considered  the  older  cases  on  the 
subject,  and  came  to  the  conclusion  that  mere  inadequacy 
of  price,  without  the  least  impropriety  of  conduct  on  the 
part  of  the  plaintiff,  was  a  sufficient  defense  ;  and  his  honor 
did  not  advert  to  the  proposition  that  such  inadequacy 
must  amount  to  evidence  of  fraud,  but  treated  it  as  one 
form  of  hai-dship  which  jDrevented  the  action  of  the  court.(5) 

§  4"J6.  The  general  rule  tliat  the  hardship  of  a  contract 

(s)  Fatcke  v.  Gray,  4  iJrew.,  '151. 

'  In  Westervelt  v.  Matheson,  1  Hofl".  Ch.,  87,  the  court  refused  to  set  aside  a 
purchase  of  land  made  for  $2,9(i0,  its  highest  value  being  estimated  at  $3,500, 
upon  tlie  ground  tliat  the  inadequacy  was  not  so  gross  as  to  indicate  a  fraud. 
Seymour  v.  Delance}',  o  Cow.,  445,  was  a  case  on  appeal  from  the  decision  of 
Chancellor  Kent.  The  learned  senator  who  delivered  the  prevailing  opinion 
admitted  that,  when  the  inadequacy  of  price  was  strong  evidence  of  fraud, 
the  contract  would  not  be  carrieil  into  execution.  "It  is  not  to  be  denied,"  he 
observed,  "that  it  is  the  settled  doctrine  of  the  court  of  chancery,  that  it  will 
not  carry  into  effect,  specifically,  a  contract,  when  the  inadequacy  of  the  price 
amounts  to  conclusive  evidence  of  fraud."  But  he  could  not  admit  that  inade- 
quacy of  price,  not  amounting  to  fraud,  was  sufficient  to  stay  the  application 
of  a  court  of  equity  to  enforce  the  specific  performance  of  a  private  contract  to 
sell.  It  should  be  remarked  that,  although  the  decision  was  reversed,  it  was 
upon  a  different  point,  a  question  of  fact;  and  that  the  views  of  Chancellor 
Kent  were  concurrent  with  the  opinion  of  the  court  of  errors.  "Excess  of 
])rice  over  value,  though  considerable,"  it  is  said  in  C'athcart  v.  Robinson,  5 
Pet.,  208,  "if  the  contract  be  free  from  imposition,  is  not  in  itself  sufficient  to 
prevent  a  decree  for  specific  performance."  And  no  doctrine  of  equity  is  bet- 
ter settled  than  this,  whether  in  regard  to  vendor  or  vendee.  Garnett  v.  Macon, 
2  Brock.,  1H5;  Rodman  v.  Zilly,  Saxtou,  820;  White  v  Thompson,  1  Dev.  &, 
Bat.  Ch.,  498:  Tripp  v.  Tripp,  Rice's  Ch.,  84;  Bean  v.  Valde,  2  Miss.,  126.  In 
the  recent  case  of  Viele  v.  Troy  and  Boston  R  R.  Co.,  21  Barb.  Sup.  Ct.  Rep., 
581,  it  was  decided  that,  where  a  bill  for  the  specific  performance  of  a  contract 
was  brought  before  a  court  of  equity,  the  court  would  make  no  inquiry  into 
the  adequacy  of  the  consideration,  unless  the  inadequacy  be  so  great  as  to  raise 
a  conclusive  presumption  of  fraud.  This  is  undoubtedly  the  law  of  the  State 
of  New  York  at  the  present  time.  There  is,  perhaps,  a  distinction  to  be  taken 
between  cases  of  private  sales  and  sales  at  auction.  In  reference  to  the  last,  it 
has  been  several  times  decided  that  inadequacy  of  price  did  not,  in  any  case, 
amount  to  conclusive  evidence  of  fraud.  White  v.  Damon,  7  Ves.,  80.  In  the 
ca.se  of  Borell  v  Dann,  the  vice-chancellor  said :  Fraud,  in  the  purcha.se,  is  of 
the  es.seucc  of  the  objection  to  the  contract,  on  the  ground  of  inadequacy. 
The  only  exception  to  the  rule  for  decreeing  the  specific  performance  of  an  un- 
executed contract,  on  the  ground  of  inadequacy  of  consideration,  is  that  it  is 
so  gross  that,  of  itself,  it  proves  fraud  or  imposition  on  the  part  of  the  pur- 
chaser. The  case,  however,  must  be  strong,  indeed,  in  which  a  court  of  justice 
shall  say  that  a  purchaser,  at  a  public  auction,  between  whom  and  the  vendors 
tliere  has  been  no  previous  communication  affecting. the  fairness  of  the  sale,  is 
chargeable  with  fraud  or  imposition,  only  because  his  bidding  did  not  greatly 
exceed  the  amount  of  the  vendors'  bidding.  See  Willard's  Eq.  Jur.,  §  1, 
ch.  4,  425. 


INADEQUACY    OF   THE   CONSIDERATION.  209 

is,  independently  of  fraud,  a  ground  for  refusing  its  specific 
performance,  would  seem  to  carry  with  it  the  particular 
rule  that  inadequacy  of  consideration,  when  amounting  to 
hardship,  but  not  to  fraud,  should  yet  be  a  defense.  But 
there  appears  (notwithstanding  an  expression  of  opinion 
from  the  bench  to  the  contrary[^])  great  good  sense  in  re- 
fusing to  adopt  such  a  rule.  To  make  a  contract  for  an 
insufficient  consideration  incapable  of  enforcement  by  the 
l')urchaser,  would  be  practically  to  prevent  a  man  from  sell- 
ing his  property  at  less  than  its  value — however  impossible 
it  might  be  to  sell  it  at  its  value,  however  desirous  he  might 
be  to  sell  it  for  the  price  actually  obtained,  however  desira- 
ble it  might  be  for  his  interest  that  he  should  do  so,  and 
however  unwilling  or  unable  the  purchaser  might  be  to  pur- 
chase at  its  full  value.  The  rule  would,  when  it  did  not 
stop  the  sale,  yet  further  reduce  the  amount  receivable  by 
the  vendor,  because  the  purchaser  would,  in  effect,  indem- 
nify himself  for  the  risk  he  ran  by  offering  less  purchase 
money  than  he  otherwise  would  have  done.  The  freedom 
of  contract,  including  in  it  the  freedom  to  enter  into  en- 
forceable contracts,  should  never  be  infiinged  without  suffi- 
cient cause.  But  furthermore,  if  inadequacy  of  considera- 
tion short  of  fraud  were  a  bar  to  specific  performance,  the 
question  would  arise  as  to  the  amount  of  inadequacy  which 
should  so  operate — a  question  not  easy  to  answer. 

§  4S7.  In  the  later  Roman  law,  these  difficulties  in  the 
way  of  relieving  against  inadequacy  of  consideration  in  cer- 
tain cases  were  overcome,  at  least  as  to  immoveable  prop- 
erty. By  a  constitution  of  the  Emperors  Diocletian  and 
Maximian,  the  right  of  recission  for  inadequacy  of  consid- 
eration was  first  introduced. (w)  Their  constitution  was 
adopted  by  Justinian.  It  fixed  the  arbitary  standard  of 
half  the  real  price  as  that  which  would  give  the  sufferer  a 
right  to  the  interference  of  the  law ;  when  the  price  paid 
did  not  amount  to  half  the  real  value  of  the  thing  sold,  the 
vendor  might  put  the  purchaser  to  his  election,  either  to 
take  back  the  purchase  money  and  restore  the  thing  sold, 
or  to  keep  the  thing,  and  make  up  the  deficiency  in  the 
purchase  money.  (zO    The  old  French  law  adopted  the  same 

(0  Xott  V.  Hill,  2  Gas.  in  Ch.,  120.  (i")  Cod.  lib.  Iv,  tit.  44.  2. 

(w)  Troplong,  De  la  Vente,  §  730. 

14 


210        FRY  OX  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

principle,  except  in  the  case  of  sales  between  co-heirs  and 
co-proprietors,  where  a  defect  of  one-qnarter  of  the  price 
liad  the  same  effect  as  a  like  defect  of  one-half  in  other 
cases. (?r)  The  present  law  of  France  is  embodied  in  article 
1674  of  the  Code  Civil,  which  is  remarkable  for  the  strin- 
gency of  its  i)rovisions  and  for  the  discnssion  in  the  Coun- 
seil  d'Etat  of  which  it  was  the  result,  a. discussion  in  which 
the  first  consul  took  a  prominent  part.(.'c)  It  enables  a  ven- 
dor of  an  immoveable  to  require  recission,  if  he  suffers  in- 
jury to  the  extent  of  more  than  seven- twelfths  of  the  price, 
though  he  may  by  the  contract  have  expressly  renounced 
such  right,  and  have  declared  that  the  price  given  is  the 
full  value. 

§  428.  The  question  of  the  inadequacy  of  the  considera- 
tion must,  of  course,  be  decided  at  the  time  of  the  contract, 
and  not  by  the  light  of  subsequent  events.'  It  is  true  that, 
in  a  case(?/)  already  stated,  the  circumstance  of  the  con- 
tract having  been  made  during  the  excitement  caused  by 
the  South  Sea  scheme  was  allowed  as  a  reason  why  the 
court  relieved  a  j)urchaser  from  the  performance  of  his  con- 
tract ;  but  the  case  is  one  which  cannot  now  be  considered 
as  law,  and  the  principle  involved  seems  unjust.  It  is  now, 
therefore,  well  established  that  the  time  of  the  contract  is 
the  time  for  judging  of  its  consideration  :  thus,  to  give  one 
exami^le,  where  an  annuity  for  life  forms  j^art  of  the  con- 
sideration, and  the  life  drops  before  any  payment  is  made, 
this  does  not  render  the  consideration  necessarily  inade- 
quate, (z) 

§  429.  Where  the  contract  refers  the  price  to  a  valuer 
for  him  to  ascertain  between  the  parties,  this  fact  does  not 
of  itself  preclude  the  court  from  inquiring  into  the  adequacy 
of  the  consideration,  (a)  and  this  inadequacy  of  considera- 
tion would,  of  course,  be  strengthened  as  a  defense  if  any 
circumstances  arose  which  threw  a  doubt  on  the  accuracy 
with  which  the  valuation  was  made.(&) 

§  430.  The  effect  of  an  undervaluing  by  the  valuers  is  a 

(ic)  Pothler,  Tr.  des  Obllg.,  Part  I,  ch.  1,  port  in  Gilbert,  the  case  was  decided  or 

§  1,  art.  3,  §  i.  another  point. 

(X)  Troplong,  De  la  Vente,  §  787  et  seq.  («)  Mortimer  v.  Capper,  1  Bro.  C.  C,  156. 

(y)  Savile  v.  Savile,  supra,  §  423.    See  Klen       (a)  Parken  v.  Whitby,  T.  &  K.,  366. 
V.  stukeley,  1  Bro.  P.  C,  191,  where  the  same       (b)  Emery  v.  Wase,  8  Ves.,  505. 
ground  was  urged;  but  according  to  the  re- 

'  Batty  V.  Lloyd,  1  Vem.,  141. 


IXADEQUACY   OF   THE   COXSIDEP.ATION.  211 

question  wliicli  lias,  however,  been  but  little  discussed  in 
our  courts  :  it  lias  been  debated  with  the  usual  diversity  of 
opinion  by  the  writers  on  civil  law.(c)  It  is  conceived  that, 
if  the  undervalue  were  such  as  to  convince  the  court  that 
the  valuers  had  acted  under  fraud  or  mistake,  the  contract 
would  be  incapable  of  enforcement  in  equity  :  otherwise,  if 
the  undervalue  did  not  so  convince  the  court. 

§  431.  The  question  of  inadequacy  of  consideration  in  a 
sale  of  reversionary  interests,  Avhether  arising  in  a  suit  to 
set  aside  the  sale  or  in  a  suit  for  the  performance  of  the  con- 
tract, was  formerly  governed  by  special  considerations. 
The  law  upon  this  question  has,  to  a  certain  extent,  been 
altered  by  statute.  It  is  necessary,  therefore,  to  consider 
liow^  the  law  stood  before  the  legislative  alteration,  and 
Avhat  is  the  extent  of  that  alteration. 

§  432.  Before  the  statute  hereafter  to  be  referred  to,  the 
defense  of  inadequacy  of  consideration  in  respect  of  con- 
tracts for  the  sale  of  reversions  had  two  peculiarities  which 
distinguished  it  from  the  like  defense  in  the  case  of  ordinary 
contracts.  It  was  clear  (1)  that  the  proof  of  inadequacy  was 
a  sufficient  defense,  though  there  were  no  accompanying  cir- 
cumstances of  fraud  or  oppression,  and  though  the  inade- 
quacy did  not  amount  to  evidence  of  fraud  \{d)  (2)  that  the 
burthen  of  proof  lay  on  the  plaintiff  purchaser :  it  rested 
on  him  to  show  that  the  price  was  adequate,  not  on  the  de- 
fendant vendor  to  show  that  it  was  inadequate,  (e) 

§  433.  The  principle  on  which  the  court  acted  in  these 
cases  was  that  a  man  possessed  only  of  a  future  interest 
sells  at  a  disadvantage ;  it,  therefore,  did  not  apply  where 
the  tenant  for  life  and  the  reversioner  concurred,  as  they 
together  "form  a  vendor  with  a  present  interest ;''(/)  and 
so  where  a  vendor  had  a  rent-charge  of  £500  in  possession 
and  an  estate  in  reversion,  and  he  sold  a  perpetual  rent- 
charge  of  £500,  he  was  not  considered  as  within  the  prin- 
ciple now  under  consideration,  he  having  it  in  his  power  to 
secure  a  perpetual  rent-charge  of  that  amount  in  posses- 
sion. (<7) 

§  434.  The  mere  fact,  however,  that  some  interest  in  pos- 

i,\  Trn«imicr  TIP  la  Vpnte  S  15S  (/)  Woocl  V.  Abrcy,  3  "Mad.,  417. 

S  Pla?fo;f  V  playfordf  4  H^;  54G.  (P)  Wardle  v.  Carter,  7  Sim..  490. 

(e)  Kendall  v.  Beckett,  2  R.   &  My.,  S8  ; 
Hincksman  v.  Smith,  3  Russ.,  433. 


212        FKY  OX  SPECIFIC  PERFOEMANCE  OF  CONTRACTS. 

session  was  sold  together  Avitli  the  reversion,  did  not,  at  least 
where  the  foniier  was  not  considerable,  take  the  case  out  of 
the  rule  \{h)  as,  for  instance,  where  an  annuity  in  possession 
was  sold  together  with  the  reversion,  the  estimated  value 
of  the  annuity  being  only  about  one-sixth  of  that  of  the 
reversion.  (/) 

§  i:i5.  Again,  the  principle  did  not  apply  where  the  re- 
versionary interest  was  sold  by  auction  \{j)  and  this  for 
two  reasons.  First,  "there  being  no  treaty  between  vendor 
and  purchaser,  there  can  be  no  opportunity  for  fraud  or  im- 
position on  the  part  of  the  purchaser.  The  vendor  is,  in  no 
sense,  in  the  power  of  the  purchaser. "(A*)  Secondly,  it  being 
clearly  established  that  the  market  price  of  the  reversionary 
interest,  and  not  the  estimate  of  actuaries,  was  the  criterion 
by  which  the  court  decided  the  question  of  undervalue,  (Z) 
and  a  sale  by  auction  being  a  mode  of  ascertaining  that 
market  price,  it  followed  that  the  consideration  for  the 
transaction  and  the  value  in  the  eye  of  the  court  must  in 
such  cases  be  one  and  the  same,  and  that,  in  the  absence  of 
fraud,  no  question  of  undervalue  could  arise. 

§  436.  Such  was  shortly  the  state  of  the  law  before  the 
statute  31  Yict.,  ch.  4.  By  that  statute  it  was  enacted  that 
no  purchase  made  bona  fide  and  without  fraud  or  unfair 
dealing  of  any  reversionary  interest  in  real  or  personal 
estate,  should  thereafter  be  opened  or  set  aside  merely  on 
the  ground  of  nndervalue. 

§  437.  As  regards  actions  for  the  rescission  of  contracts 
for  the  sale  of  reversions,  the  operation  of  this  act  is  clear. 
It  makes  mere  inadequacy  no  sufficient  gi'ound  for  relief ; 
but  it  leaves  entirely  unailected  the  jurisdiction  which  re- 
lieves against  the  fraud  which  infects  catching  bargains 
with  heirs,  reversioners,  or  expectants  in  the  life  of  the 
father.  The  doctrines  of  the  court  which  throw  protection 
round  unwary  young  men  in  the  hands  of  unscrupulous 
persons  ready  to  take  advantage  of  their  necessities  are 
entirely  unchanged. (m) 

(h)   Per  Lord  Eldon  in  Davis  v.  Duke  of  460;  Edwards  v.  Burt,  2  De  G.  M.  &  G..  55. 

Marlborough,  2  Sw.,  154.  Consider  Perfect  v.  Lane,  30  Beav.,197;  3  De 

(i)  Earl  of  Portmore  v.  Taylor,  4  Sim.,  182.  G.  F.  &  J..  369;  Lord  v.  Jeffkins,  35  Beav.,  7. 

O')  Shelly  V.  Nash,  3  Mad.,  232.  (w)  Tyler  v.  Yates,  L.  R.  11  Eq.,  265;  C  Ch., 

(k)  Per  Leach,  V.  C,  id.,  236.  664;  Earl  of  Aylesford  v.  Morris,  Id.  8  Ch., 

(I)  Wardlev.  Carter,  7  Sim.,  400;  per  Wig-  484;  Beynon  v.  Cook,  10  Ch.,  389;  O'Rorke 

ram.V.  C,  in  Borell  v.  Dann,  2  Ha.,  4.52;  v.  Bolingbroke,2  App.  C.,S14;  Nevill  v. Snel- 

Earlof  Aldborough  V.  Trye,7Cl.  &Fin.,430,  ling,  15Ch.  D.,679. 


INADEQUACY   OF   THE   CONSIDERATION.  213 

§  438.  But  tlie  act  is  silent  as  regards  the  specific  i^er- 
formance  of  contracts  relating  to  reversions.  Does  it,  there- 
fore, leave  the  law  just  as  it  was  ?  or  does  it  for  all  purposes 
place  sales  of  reversions  on  the  same  footing-  as  other  sales 
so  far  as  regards  the  question  of  inadequacy  of  considera- 
tion? No  decision  has,  it  is  believed,  l)een  given  upon 
these  questions :  but  it  is  submitted  that  the  true  conclu- 
sion is,  that  every  contract  for  the  sale  of  a  reversion  which 
cannot  be  relieved  against  ought  prima  facie  to  be  per- 
formed ;  that  the  object  of  the  act  was  to  place  bona  fide 
and  honest  sales  of  reversions  on  the  same  footing  as  other 
sales :  and  that  henceforth  in  specific  performance  actions 
there  will  rest  on  the  defendant  the  burthen  of  proving  in- 
adequacy of  consideration,  and  such  inadequacy  as  shocks 
the  conscience  of  the  court  and  constitutes  evidence  of 
fraud,  or  as  is  accom]5anied  by  other  circumstances  of  op- 
pression or  unfairness. 

§  439.  It  only  remains  to  add  as  affording  some  support 
to  this  conclusion  that  the  rule  throwing  the  burthen  of 
proof  of  adequacy  on  the  purchaser  was  adopted  in  specific 
performance  suits  in  obedience  to  decisions  to  that  effect 
in  suits  to  set  aside  the  transaction  ;  and  not  on  any  inde- 
pendent ground  affecting  such  suits  in  particular. (o) 

(o)  See  Kendall  V.Beckett,  2  R.  &  My.,  884;    the  cases  there  cited  and  relied  upon  in 
Hinckeman  v.  Smith,  3  Ru8s.,433;  and  notice    judgment. 


214        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 


CHAPTER  Aail. 

OF   AVANT   OF   MUTUALITY   IN   THE   CONTRACT. 

§  440.  A  contract  to  be  specifically  enforced  by  the  court 
must  be  mutual — that  is  to  say,  such  that  it  might,  at  the 
time  it  was  entered  into,  have  been  enforced  by  either  of 
the  parties  against  the  other  of  them.(«)'  Whenever,  there- 
fore, whether  from  personal  incai)acity  to  contract,  or  the 
nature  of  the  contract,  or  any  other  cause,  the  contract  is 
incai)able  of  being  enforced  against  one  party,  that  party  is 
equallj'  incapable  of  enforcing  it  against  the  other,  though 
its  execution  in  the  latter  way  might  in  itself  be  free  from 
the  difficulty  attending  its  execution  in  the  former.'' 

(a)  In  Williams  v.  Williams,  L.  R.  2  Oh.,  verbal  family  arrangement.  ConsiderTurner 
294, 304,  there  was  lield  to  be  mutuality  in  a    v.  May,  32  L.  T.  (N.  S.),  56. 

^  Mutualitii  as  to  obligation  and  remedy.  ]  A  contract  whicli  is  sought  to  be 
specificallj'  enforced  must  be  mutual,  both  as  to  the  remedy  and  the  obligation. 
Boucher  V.  Yanbuskirk,  2  A.  K.  Marsh.,  345;  Hutchinson  v.  McNutt,  1  Ohio, 
14:  Ohio  v.  Baum,  6  id.,  383;  Cabeen  v.  Gordon,  1  Hill  Ch.  (S.  C),  51;  Mc- 
Murtree  v.  Bennett,  Harr.  Ch.,  124;  Hawley  v.  Sheldon,  id.,  430;  Benedict  v. 
Lvnch,  1  John.'s  Ch.,  370;  German  v.  Machin,  6  Paige  Ch,,  288;  Beard  v.  Lin- 
thicum,  1  Md.  Ch.,  345;  Bodine  v.  Gladdins:,  21  Pa.  St.,  50;  Jones  v.  Noble,  3 
Bush.  (Ky.),  694;  Rider  v.  Gray,  10  Md.,^282;  Reese  v.  Reese,  41  id.,  554; 
O'Brien  V.  Pentz,  48  id.,  562;  Ewins  v.  Gordon,  49  N.  H.,  444;  Richmond  v. 
Dubuque  R.  R.  Co.,  33  Iowa,  422;  Taw  v.  Scott,  4Breu  's  (Pa.),  49;  Cooper  v. 
Pena,  21  Cal.,  403;  Duvall  v.  Myers,  2  Md.  Ch  ,  401;  IMeason  v.  Kane,  63  Pa. 
St.,  335;  Luse  v.  Deitz,  46  Iowa,  205;  Maynard  v.  Brown,  41  Mich.,  298; 
Smith  V.  Smith,  63  Ga.,  184;  Bronson  v.  Cohill,  4  ]McLean,  19;  Snyder  v. 
Neefus,  53  Barb.,  63;  Marble  Co.  v.  Ripley,  10  Wall.,  339;  Mastin  v.  HaWey, 
61  Mo.,  196;  Vassault  v.  Edwards,  43  Cal.,  458. 

Option.l  An  optional  contract  to  sell  property,  or  renew  a  lease,  without 
any  covenant  or  obligation  to  purchase  or  accept,  and  without  any  remedy  that 
is  mutual,  will  be  enforced  by  a  court  of  equity,  when  it  has  been  made  upon 
proper  consideration,  or  forms  part  of  a  contract  between  the  parties,  that  may 
he  the  true  consideration  for  it.  Classon  v.  Bailey,  14  Johns.,  484;  In  re  Hun- 
ter, 1  Ed.  Ch  ,  1;  Woodward  v.  AspeuAvall,  4  Sandf.,  272;  Hawralty  v.  War- 
ren, 18  N.  J.  Eq.,  124;  Vandoren  v.  Robinson,  16  id.,  256;  Green  v.  Richards, 
23  id.,  32;  Schroeder  v.  Gemeinder,  10  Nev.,  355;  Cor.son  v.  Mulvany,  49  Pa. 
St.,  88;  Boston,  etc.,  R.  R.  Co.  v.  Bartlett,  3  Cush.,  224;  D'Arras  v.  Keyser, 
26  Pa.  St.,  249. 

Continuing  offer  to  8ell.'\  An  agreement  to  sell,  provided  another  will  pur- 
cha.se,  is  in  the  nature  of  a  continuing  offer,  and  when  accepted  completes  the 
contract.  De  Rutte  v.  Muldrew,  16  Cal.,  505;  Laffan  v.  Nagle,  9  id.,  662; 
Hall  V.  Canter,  40  id.,  65;  Willard  v.  Taylor,  8  Wall.,  557;  Napier  v.  Darling- 
ton, 70  Pa.  St.,  64;  Manlin  v.  Perrj-,  35  Md.,  353. 

"  No  rule  in  equity  is  more  thoroughly  settled  than  this.  Benedict  v.  Lynch, 
1  John.   Ch.,  370;  Bromley  v.  JeflEers,  2  Vern.,  415;  German  v.  Machin,  6 


WANT   or   MUTUALITY   IN   THE   CONTRACT.  215 

§  441.  Thus  a  tenant  in  tail  cannot  enforce  a  contract 
entered  into  by  a  tenant  for  life,  because  the  tenant  in  tail 
could  not  be  sued  on  it  :(6)  an  infant  cannot  sue,  because 
he  could  not  be  sued,  for  a  specific  performance  :{c)  a  pur- 
chaser from  a  person  who  at  the  time  of  the  sale  had  no 
estate  in  the  proj^erty  sold,  may  defend  himself  on  the  score 
of  the  vendor's  original  incapacity  to  perform  his  part:(<^) 
a  father  cannot  enforce  a  contract  on  the  part  of  his  mother- 
in-law  to  pay  him  an  allowance  in  consideration  of  his  giv- 
ing up  to  her  the  custody  of  his  infant  children  during  a 
specified  part  of  every  year  :(e)  and  where  A.  agreed  with 
B.  not  to  join  in  barring  an  entail,  and  B.  agreed  to  convey 
to  A.  certain  parts  of  the  estate  on  his  entering  into  pos- 
session, and  it  was  held,  on  the  authority  of  Collins  v. 
Plummer,(/)  that  such  a  contract  could  not  be  specifically 
enforced  against  A.,  a  specific  performance  of  B.'s  part  of 
the  contract  was  refused  at  the  suit  of  A.'s  representa- 
tives. (^)  On  the  same  principle  it  would  seem  that  a  con- 
tract entered  into  by  several  devisees  in  trust  for  sale,  of 

(b)  Armiger  v.  Clarke,  riumb.,lU;  Rick-  party  of  full  age.    The  infant  cannot  recover 
ett  V.  Bell,  1  De  G.  &  Sm.,  335.  a  deposit  paid  on  the  contract,  except  on  the 

(c)  Flight  V.  Bolland,  4  Russ.,  298.    The  ground  of  fraud.    Wilson  v.  Kearse,  Peake, 
case  of  Clayton  v.  Ashdown,  9  Vln.  Abr  ,  393,  Add.  Cas.,  196. 

may  perhaps  be  explained  on  the  ground  of       (rf)  Hogsart  v.  Scott,  1  R.  &  My.,  293.    Cf. 

a  ratilication  by  the  infant  after  attaining  bis  Forrer  v.  Nash,  35  Beav.,  107. 

majority,  or  asbelng  au  application  in  equity        («)  Kennedy  v.  May,  11  W.  R.,  358. 

of  the    legal    principle   that    the    contract,        (/)  1  P.  Wms.,  104. 

though  voidable  by  the  infant,  binds   the       (g)  Hamilton  v.  Grant,  3  Dow,  33. 

Paige,  288;  Woodward  v.  Harris,  2  Barb.  S.  C.  R.,  439;  Phillips  v.  Berger, 
id.,  611;  confirmed  on  appeal,  8  id.,  527;  see,  also,  Rogers  v.  Saunders,  4  Me. 
R.,  92;  Tyson  v.  Watts,  1  Maryl.  Cli.  Decis.,  18;  Beard  v.  Liutbicum,  id.,  345; 
M'Miirtrie  v.  Bennet,  Hamng.  Cli.,  124;  Hawley  v.  Sheldon,  id.,  420;  Cabeen 
V.  Gordon,  1  Hill.  Ch.,  51.  In  Bronson  v.  Cahill,  4  McLean,  19,  a  bill  was 
brought  in  equity,  b}^  tlie  vendors  of  certain  laud,  to  enforce  specific  execution 
of  the  contract  of  sale.  It  appeared,  however,  that  a  part  only  of  the  vendors 
had  agreed  to  make  a  good  and  sufficient  title  to  the  land.  Held,  that  there 
was  a  want  of  mutuality  in  the  contract,  and  that  specific  execution  could  not 
be  enforced.  The  same  question  arose  in  Tyson  v.  Watts,  1  3Iaryl.  Ch.  Decis. 
13.  There,  the  manifest  object  of  the  jiarty  resisting  a  decree  for  the  specific 
performance  of  a  contract,  and  one  which  he  supposed  he  had  secured  bj-  the 
contract,  was  to  have  the  minerals  on  his  farm  worked  as  well  as  explored;  by 
the  contract  he  gave  A.  full  power  to  make  explorations  and  work  the  mines; 
but  the  only  engagement  on  the  part  of  A.  was  limited  to  explorations,  and  he 
W'as  not  bound  to  work  the  mines.  Upon  this  state  of  the  case  the  court  de- 
cided the  contract  to  be  deficient  in  reciprocity  of  obligation,  and  refused  its 
specific  performance.  A  party  not  bound  by  the  agreement  itself,  has  no  right 
to  call  upon  a  court  of  equity *to  enforce  specific  performance  against  the  other 
contracting  party,  by  expressing  his  willingness,  in  his  bill,  to  perform  his  part 
of  the  engagement.  His  right  to  the  aid  of  the  court  does  not  depend  upon 
his  subsequent  offer  to  perform  the  contract  on  his  part,  but  upon  its  original 
obligatory  character.  Duvall  v.  flyers,  2  3Id.  Ch.  Decis.,  401;  see,  also,  the 
case  of  Bodine  v.  Gladding,  21  Penu.  (9  Harris),  50. 


216        FIIY  ON  SPECIFIC  PERFOEMANCE  OF  CONTRACTS. 

whom  one  Avas  a  married  woman,  would  be  unenforceable 
by  either  side.(7i)  So  where  the  relief  sought  was  analogous 
to  the  speciiic  i^erformance  of  a  grant  of  an  office,  the  court 
held  that,  the  duties  and  services  incident  to  the  office  being 
personal  and  confidential  in  their  character,  specific  per- 
formance could  not  have  been  decreed  against  the  plaintiff 
at  the  suit  of  the  defendant ;  and  consequently,  that  the 
plaintiff  could  not  sue  the  defendant,  though  there  were 
no  personal  duties  to  be  performed  by  the  defendant. (i) 
Again,  where  the  plaintiffs  had  agreed  to  perform  certain 
services  in  working  a  railway,  \vhich  were  of  such  a  confi- 
dential nature  that  the  court  could  not  have  enforced  them 
If  the  defendants  had  sued  the  plaintiffs  ;  and  the  de- 
fendants were  to  pay  money,  and  do  nothing  else ;  the 
court  refused  specific  performance,  on  the  ground,  amongst 
others,  of  want  of  mutuality. (/)  The  like  objection  pre- 
vailed where  the  plaintiff  sued  on  a  contract  under  which  he 
was  to  construct  a  railway,  and  offered  to  make  the  railway 
and  asked  for  payment.  (A-) 

§  442.  A  doubt  was  at  one  time  entertained  whether 
there  existed  the  proper  mutuality  between  a  23erson  having 
entered  into  a  contract  to  take  a  lease  from  a  tenant  for  life 
with  a  leasing  power  and  the  remainderman  :{l)  but  that 
doubt  is  now  resolved,  and  it  seems  clear  that  such  a  con- 
tract may  be  enforced  by  either  of  these  parties,  (m) 

§  443.  The  mutuality  of  a  contract  is,  as  we  have  seen,  to 
be  judged  of  at  the  time  it  is  entered  into  ;  so  that  it  is  no 
objection  to  the  plaintiff's  right,  that  the  defendant  may  by 
delay,  or  other  conduct  on  his  part  subsequent  to  the  con- 
tract, have  lost  his  right  against  the  plaintiff.  (;?)'     And  ac- 

(h)  That  the  purchaser  could  not  enforce  and  wife  Is  not  bad  for  want  of  mutuality, 

such  a  contract  has  been  decided.    Avery  v.  and  may  be  enforced  by  them.    Fenelly  v. 

Griffin,  L.  R.  6  Eq  ,  606.  Anderson,  1  Ir.  Ch.  R.,  7()6.    The  grounds  of 

(t)  Pickering  v.  Bishop  of  Ely,  2  Y.  &  C.  C.  this  decision  do  not  appear  very  conclusive. 

C-.  249.  Cf.  Avery  v.  Griffin,  h.  H.  6  Eq.,  606. 

ij)  Johnson  v.  Shrewsbury  and  Blrming-  (k)  Peto  v.  Brighton,  Uckfield,  and  Tun- 
ham  Railway  Co.,  3  De  G.  M.  &  G.,  914;  bridge  Wells  Railway  Co.,  1  H.  &  M.,  468. 
Stocker  v.  Wedderburn,3  K.  &  J  ,393;  Ord  (0  Per  De  Grey,  C.  J.,  in  Campbell  v.  Leach, 
V.  Johnston,  1  Jur.  (N.  S.),  106:!;  4  W.  R.,  37  Ambl.,  749. 

gtuart,  v.  C).    .-^ee,  also,  Hill  v.  Gomnie,  1  (m)  Shannon  v.  Bradstreet,  1  Sch.  &  Lef., 

Beav  ,  540 ;  Bromley  v.  JeflVrieK.  2  Vern  ,  41.5,  52,  particularly  04.    See  infra,  §  506. 

sed  qu.    it  has  been  decided  in  Ireland  that  (n)  South  Eastern  Railway  Co.  v.  Knott,  10 

a  contract  by  a  i)urchaser  with  a  husband  Ha  ,  122. 


'  And  the  rule  which  applies  to  cases  in  which  there  is  not  such  mutuality  of 
remedy  at  the  time  the  contract  is  made,  is  not  applicable  to  cases  in  which  the 
mutuality  of  remedy  is  taken  away  by  a  subsequent  contingent  event.  Moore 
V.  Fitz  Randolph,  6  Leigh,  175.  See  Walton  v.  Coulson,  1  McLean,  120,  which 
js  a  case  agreemg  precisely  with  the  Southeastern  Railway  Co.  v.  I^nott,  cited 
in  the  text. 


WANT   OF   MUTUALITY    IN   THE   CONTRArT,  217 

cordingly  it  lias  been  held  to  be  no  defense  on  the  part  of  a 
railway  company  for  them  to  show  that  they  had  after  the 
contract  suffered  the  time  during  which,  by  their  statutory 
powers,  they  could  purchase  the  lands  to  expire  :{o)  if  such 
a  defense  were  sustained,  it  would  be  to  allow  defendants  to 
take  advantage  of  their  own  neglect.  From  the  time  of  tlie 
execution  of  the  contract  being  the  time  to  judge  of  its  mu- 
tuality it  further  follows,  that  the  subsequent  performance 
by  one  party  to  terms  which  could  not  have  been  enforced 
by  the  other  will  not  prevent  the  objection  which  woukl. 
arise  from  the  presence  of  such  terms,  (i?) 

§  444.  The  exceptions  or  apparent  exceptions  and  limita- 
tions to  the  doctrine  of  mutuality  may  now  be  considered. 
§  445.  (1)  The  contract  may  be  of  such  a  nature  as  to 
give  to  the  one  party  a  right  to  the  performance  wliich  it 
does  not  give  to  the  other— as  for  instance,  where  a  lessor 
covenants  to  renew  upon  the  request  of  his  lessee  :((^)  or 
where  the  contract  is  in  the  nature  of  an  undertaking,  (r) 
But  these  are  merely  cases  of  conditional  contracts  :  and 
when  the  condition  has  been  performed,  as  for  instance,  in 
the  case  above  stated,  by  a  request  to  renew,  the  contract 
becomes  absolute  and  mutual  and  capable  of  enforcement 
alike  by  either  party.  (5) 

§  446,  In  cases  arising  out  of  such  contracts,  the  court 
will  exercise  its  discretion  as  to  specific  performance  with 
great  care,  and,  it  seems,  view  even  somewhat  narrowly  the 
conduct  of  the  party  claiming  the  benefit  of  his  unilateral 
right  to  make  the  contract  absolute. (^) 

§  447.  (2)  Mutuality  may  be  waived  by  the  subsequent 
conduct  of  the  person  against  whom  the  contract  could  not 
originally  have  been  enforced:  thus,  where  a  purchaser 
contracts  for  an  estate  with  a  person  having  no  title,  or  not 
such  as  he  affects  to  sell,  and  the  contract,  therefore,  is  not 
mutual,  for  want  of  interest  in  the  vendor— yet,  if  the  pur- 
ee) Hawkes  v.  Eastern  Counties  Railway  ip)  Hope  v.  Hope,  S  Do  ^- M-  &  «..  731,746, 
Co  ,1  De  G.  M.  &  G.,  737,  75.');  S.  C,  5  H.  L.  overruling  the  obs.rvnlions  of  Lord  Uonillly, 
C.,  331,365.  The  observations  01' Lord  Gran-  M.  K.,  in  S.  C, 'Ji  Beav  .  3(.4 
worth  (then  L,  J.)  in  Stuart  v.  London  and  Ui)  Chesterman  v  Mann. '.I  Ha  ,  .<G.  See 
North-western  Railway  Co  ,  1  De  G.  M.  &  G. ,  Bell  v.  Howard.  9  Mo(  ..m,  304. 
7-21.  to  the  contrarv,  may  probably  be  taken  {r)  Palmer  y.  bcoit  1  \i  &  Mj  ..  301 
to  be  overruled  by  his  lordship's  concurrence  (.v)  Cf.  WeedinK  v.  S\  eedinfr.  1  J.  &  H  .  4.4, 
in  Hawkes-  Case  in  the  House  of  Lords  See.  where  a  condliional  '-"'''J";:^,  Jill ^„7""V 
also.  Scottish  North-Eastern  Railway  Co,  v.  absolute  by  the  exercise  ..fan  option  of  pur- 
Stewart,  3  Macq.,  3S-2,  where,  however,  the  chase.  C.onsider  '^l'^<^r»«"  ^■.  ^'•»''V'^f"^, 
point  really  determined  was  one  of  con-  Ex.  D..293,  3(<i  (reversed  \ V  N  ,  >H,  p.  C*). 
Btruction.  (,0  Chesterman  v.  Mann,  9  Ua,  2*. 0. 


218        Fliy  ox  SPECIFIC  PERFOmiANCP:  OF  CONTRACTS. 

chaser  investigate  the  title  and  make  requisitions  or  concur 
in  proceedings  for  the  purpose  of  remedying  the  defect, -he 
is  afterwards  precluded  from  setting  up  the  original  want  of 
mutuality  in  the  contract.(?/0 

g  448.  And  so  where,  from  the  relation  of  the  parties  to 
one  another,  the  contract  is  originally  binding  on  the  one 
and  not  on  the  other,  the  latter  may  by  action  waive  that 
want  of  mutuality,  and  enforce  the  speciiic  performance  of 
the  contract ;  as  in  the  case  of  an  action  by  a  cestui  que 
trust  against  his  trustee  for  the  performance  of  a  contract 
for  sale,  such  a  contract  being  originally  binding  on  the 
trustee,  and  not  on  the  beneficiary. («)  The  case  of  a  con- 
tract for  sale  by  a  voluntary  settler  is  similar,  for  though 
he  is  incapable  of  enforcing  the  contract  against  an  unwil- 
ling purchaser, (w)  the  purchaser  may  waive  the  want  of 
mutuality  and  enforce  it  against  him. (re) 

§  449.  (3)  Another  apparent  exception  to  the  principle 
in  question  is  afforded  by  the  doctrine  which  was  estab- 
lished very  soon  after  the  passing  of  the  Statute  of  Frauds, 
that  in  case  of  contracts  which  by  that  statute  are  required 
to  be  in  writing,  a  party  who  has  not  signed  the  contract 
may  enforce  it  against  one  who  has.  (2/)' 

§  450.  It  has  been  alleged  in  support  of  this  doctrine,  in 
the  first  place,  that  the  statute  only  requires  the  contract  to 
be  signed  by  the  iDarty  to  be  charged  therewith  or  his  agent, 
and  is  silent  as  to  the  signature  of  the  other  party.  (^)  But 
this  reasoning  seems  inconclusive  ;  because  the  doctrine  of 
mutuality  is  independent  of  the  statute,  and  where  one 
party  has  signed  and  the  other  has  not,  the  rights  of  the 

(u)  Salisbury  v.  Hatcher,  2  Y.  &  C.  C.  C,  (j/)  Hatton  v.  Grey,  5  Vin.  Abr.,  525,  pi.  4, 

54;  Hoegart  v.  Scott,  1  R   &  Mv.,293.  in  36  Car.  ii;  S.  C,  2  Cas.  in  Ch.,  164;  Buck- 

(f)  Ex  parte  Lacey,  6  Ves.,625.  house  v.  Crosby,  2  Kq  Ca.  Ab.,32,  pl.44;  and 

iw)  Smith  V.  Garland,  2  Mer.,  123;  Johnson  see,  as  to  the  interest  of  the  party  who  has 
V.  Lepard,  T.  &  R  ,  281;  Clarke  v.  Willott,  L.  not  signed,  Morgan  v.  Holl'ord,  1  Sm.  &  Giflf., 
R.  7  Ex.,  313.  In  Peter  v.  Nicolls,  1>.  R.  11  101.  See,  too,  infra,  §  497. 
Eq.,  391,  Stuart,  V.  C. .  held  that  the  rule  (z)  Coleman  v.  Upcot,  5  Vin.  Abr  ,  527,  pi. 
establi-jhed  by  Smith  V.  Garland  did  not  ap-  17;  Child  v  Comber.  3  Sw.,  423  n.;  Back- 
ply  to  a  purchaser  who  admitted  that  he  was  house  v.  Mohun,  id.,  434  n.;  Seton  v.  Slade, 
a  willing  purchaser,  but  objected  to  the  title.  7  Ves  ,  265;  Lord  Ormond  v.  Anderson,  2 
See  supra,  §  3>7,  and  note  there.  Ball  &  B.,  363. 

(x\  Buckle  V.  Mitchell,  IS  Ves.,  ion ;  and  see 
Rosher  v.  Williams,  L.  R.  20  Lq.,  210. 

'  In  support  of  this  exception,  see  Seton  v.  Slade,  7  Ves.,  275 ;  Fowle  v.  Free- 
man, 9  id.,  357;  Clason  v.  Bailey,  14  John.  Rep.,  184;  McCrea  v.  Purdy,  16 
"Wend.,  40f3;  \Yoodward  v.  Aspinwall,  3  Sandf.  S.  C.  R  ,  273;  Sutherland  v. 
Briggs,  1  Hare,  34.  But  see  the  comments  of  Lord  Redesdale  in  Lawrence  v. 
BMtler,  1  Sch.  &  Lef.,  13;  and  of  Verplanck,  senator,  in  Davids  v.  Shields, 
26  Wend.,  36-2. 


WANT  OF  MUTUALITY  IN  THE  CONTRACT.      219 

parties,  wliicli  before  the  statute  were  mutual,  have  by  force 
of  it  ceased  to  be  such,  (a)  A  more  satisfactory  reason  is 
that,  by  instituting  proceedings,  the  phiintiff  has  waived 
the  original  want  of  mutuality,  and  rendered  the  remedy 
mutual.  (Z') 

§451.  On  the  same  ground,  a  contract  contained  in  a 
deed-poll  was  enforced,  notwithstanding  an  objection  taken 
from  the  unilateral  nature  of  the  instrument. (c) 

§  452.  (4)  Where  the  vendor  has  not  substantially  tlie 
whole  interest  which  he  contracted  to  sell,  he  cannot  enforce 
the  contract  against  the  purchaser,  and  yet  the  purchaser 
can  generally  enforce  it  against  him  by  compelling  him  to 
convey  what  he  can,  with  an  abatement  of  the  purchase- 
money  as  compensation  for  the  deficiency.  This  subject 
will  be  found  discussed  in  a  subsequent  chapter.  (dZ) 

§  453.  In  two  Irish  cases  decided  by  Lord  Redesdale,  in 
each  of  which  the  party  seeking  to  enforce  the  contract  was 
at  the  time  w^hen  he  entered  into  it  aware  of  the  defect  in 
the  other  party's  title, (e)  the  principle  stated  in  the  last 
preceding  section  was  held  not  to  apply. 

§  454.  In  one  of  these  cases,  a  tenant  for  life  entered  into 
a  contract  with  the  plaintiff  to  grant  a  lease,  which  he  could 
not  do  without  the  consent  of  trustees :(/)'  the  consent  was 
refused,  the  contract  being  in  fact  intended  to  give  a  fine  to 
the  tenant  for  life  in  fraud  of  the  power :  the  intended  lessee 
filed  his  bill  against  the  tenant  for  life,  and  contended  that 
he  w^as  at  least  entitled  to  such  a  lease  as  the  tenant  for  life 
could  grant  out  of  his  estate.  But  Lord  Redesdale  dis- 
missed the  bill  for  want  of  mutuality.  "No  man,"  he  said, 
"signs  an  agreement  but  under  a  supposition  that  the  other 
party  is  bound  as  w^ell  as  himself  :  and,  therefore,  if  the 
other  party  is  not  bound,  he  signs  it  under  a  mistake  ; ''(//) 

(a)  SeeperLeach.V.C.inBoysv.Ayerst,  (c)  Otway  v.  Braithwaitc.  Finch,  405.    So, 

6  Mad    3'3  also,  of  a  bona,  Butler  v.  Powia,  1  Coll.,  lo6. 

(6)  Clifld  V.  Comber,  3  Sw.,  423  n. ;  Seton  v.  (</)  Part  IV,  cliaii.  li,  §  1J--2  et  seq. 

Slade,  7  Ves.,  2G5;  Fowle  v.  Freeman,  9  id  ,  (e)  That  this  circumstance  is  not  ncces- 

351  •  per  Grant,  M.  R.,  in  Western  v.  Kussell,  sarily  fatal  to  relief,  see  inlra,  ^  Viol ;  Uarker 

3V.  &B.,  19-2;  Martin  V.Mitchell,  2  J.  &W.,  v.  Cox,  4  (Jh.  D.,  4G4.                          ».  t  ,  r    n 

413;  Flight  v.  Bolland,  4  Kuss.,  iVS.  (/)  Lawrenson  v.  Sutler,  1  Sch.  X  Lei  ,  IJ. 

°                *  (^)  1  Sch.  &  Lef,  21. 


1  "Where  the  vendor  has  contracted  to  convey  a  tract  of  land,  the  title  to  a 
part  of  which  fails,  the  vendee  may  claim  a  specific  performance  of  the  con- 
tract as  to  the  residue  of  the  laud,  with  a  compensation  m  damages  m  relation 
to  which  the  vendor  is  unable  to  give  a  good  title."  Morss  v.  Llmendorf,  11 
Paige,  387. 


220         Fi:V  ON  SPECIFIC  PEKFOHMANCE  OF  CONTRACTS. 

and  his  lordsliip  considered  that  the  principle  above  stated 
only  applies  where,  on  the  faith  of  a  contract,  one  party  has 
put  liimself  in  a  situation  from  which  he  cannot  extricate 
himself,  and  is,  therefore,  willing  to  forego  part  of  his  con- 
tract— where  an  injury  would  be  sustained  by  the  plaintiff, 
unless  he  were  to  get  such  an  execution  of  the  contract  as 
the  defendant  could  give.  In  the  other  case,  Lord  Redes- 
dale  further  observed  upon  the  si^ecific  performance  of  con- 
tracts by  a  tenant  for  life  exceeding  his  power.  (7/^)  "I 
think,"  said  his  lordship,  "courts  of  equity  should  never 
enforce  such  contracts,  whether  Avith  a  view  to  the  party 
himself  or  to  the  person  entitled  in  remainder.  In  the  first 
place,  it  is  unconscionable  in  the  tenant  for  life  to  execute 
such  a  lease,  because  it  brings  an  incumbrance  on  the  estate 
of  the  remainderman,  and  puts  him  to  litigation  to  get  rid 
of  it :  and  as  to  the  tenant  for  life  himself,  it  is  compelling 
him  to  do  what  is  to  be  the  foundation  of  a  future  action  for 
damages,  if  he  die  before  the  twenty-one  years.  The  court 
will  never  do  this,  but  will  leave  the  party  at  once  to  bring 
his  action  for  damages.  And  I  also  conceive  that  this  sort 
of  contract,  obtained  by  a  person  who  knew  at  the  time  the 
nature  of  the  title,  is  unconscionable  in  him,  as  he  makes 
himself  a  party  knowingly  to  that  which  is  a  fraud  on  the 
remainderman  ;  and,  under  such  circumstances,  he  has  no 
claim  to  the  assistance  of  a  court  of  equity." (/) 

§  45*1.  This  view  of  the  jurisdiction  is  certainly  narrow^er 
than  that  entertained -by  previous  judges  :  it  has  been  re- 
marked to  be  such  by  Lord  Langdale,  M.  R.,(y)  and  has 
been  disaioproved  of  by  Lord  St.  Leonards.  "I  doubt," 
said  his  lordsliip,  speaking  of  Lord  Redesdale's  dismissal  of 
the  bill  in  the  first  of  the  cases  above  alluded  to,  ' '  whether 
that  can  be  maintained  as  the  law  of  the  court  where  there 
is  no  fi'aud  in  the  transaction.  If  there  be  a  bona  fide  inten- 
tion to  execute  the  power,  and  the  contract  cannot  be  carried 
into  effect,  I  do  not  see  why  the  interest  of  the  tenant  for 
life  should  not  be  bound  to  the  extent  he  is  able  to  bind  it, 
unless  there  be  some  inconvenience."  (A')    And  the  principle 

(h)  Harnett  v.  Yielding,  -2.  Sch.  &  Lef.,  549;       ( /)  In  Thomas  v.  Dering,  1  Ke.,  746. 
contra,  Neale  v.  Mackenzie,  1  Ke.,  474.  (k)  Dyas  v.  Cruise,  2  J.  &  Lat.,  460,  487. 

(i)  i  Sch.  &  Lef.,  559.    See,  also,  553. 


WANT   OF   MUTUALITY   IN   THE   CONTRACT.  2*21 

thus  stated  is  now  firmly  establislied,  notwithstanding  the 
objection  for  want  of  mutuality.  (Z)' 

(I)  See  infra,  Part  IV,  chap,  li,  §  1222  et  seq. 

1  "It  is  also  perfectly  evident,"  it  is  added  bj'  Wal worth,  Cliancellor,  ia 
Morss  V.  Elniendorff,  if  Paige,  288,  "in  this  case,  that  the  complainant,  at  the 
time  he  filed  his  bill,  was  aware  that  the  supposed  gore  had  no  existence,  and 
that  no  specific  performance  of  the  agreement  could  be  obtained  in  this  court. 
And  in  a  case  of  that  kind.  Chancellor  Kent  correctly  decided  that  this  court 
ouffht  not  to  entertain  the  suit  merely  for  the  assessment  of  damages.  Hatch 
V.  Cobb,  4  John.  Ch.,  5r,9;  Kempshall  v.  Stone,  5  id.,  193.  But  where  the  de- 
fendant deprives  himself  of  the  power  to  perform  the  contract  specifically, 
during  the  pendency  of  a  suit  to  compel  such  performance,  this  court  may  very 
properly  retain  the 'suit,  and  award  the  complainant  a  compensation  in  dam- 
ages, to  prevent  a  multiplicity  of  suits.  And  I  am  not  prepared  to  say  that 
such'  a  decree  might  not  be  proper,  where  the  defendant  had  deprived  himself 
of  the  power  to  perform  the  contract  prior  to  the  filing  of  the  bill,  but  without 
the  knowledge  of  the  complamant;  or  even  where  he  had  never  had  the  power 
to  perform,  if  the  complainant  had  filed  his  bill  in  good  faith,  supposing  at  the 
time  he  instituted  his  suit  here  that  a  specific  performance  of  the  contract  could 
be  obtained  under  the  decree  of  this  court.  But  this  court  does  not  entertain 
jurisdiction  where  the  sole  object  of  the  bill  is  to  obtain  a  compensation  indam- 
ages  for  the  breach  of  a  contract,  except  where  the  contract  is  of  equitable 
cognizance  merely.  Nor  can  a  complainant  entitle  himself  to  the  interference 
of °this  court,  to  give  him  a  compensation  in  damages  for  the  non-performance 
of  a  contract,  by  neglecting  to  state  in  his  bill,  that  the  defendant  is  unable  to 
perform  the  contract  specifically;  where  that  fact  is  known  to  him  at  the  time 
of  filino-  his  bill  in  this  court.  For  if  the  facts  which  were  then  known  to  him 
had  been  fully  stated  in  his  bill,  the  defendant  might  have  demurred,  upon  the 
ground  that  the  complainant's  remedy,  if  any  he  had,  was  at  law  and  not  m 
equity.  Or  he  might  have  raised  that  objection  in  his  answer.  In  this  case, 
therefore,  the  complainant's  bill  cannot  be  retained  for  the  purpose  of  obtain- 
ing a  compensation  in  damages  merely,  when  he  knew  that  he  could  expect 
nothing  more  than  such  a  compensation  in  damages  at  the  time  of  filinj^  his 
bill.  And  the  complainant  having  made  a  case,  by  his  bill,  apixirently  entitling 
him  to  a  specific  performance,  he  cannot  now  insist  that  the  defendant  has 
waived  the  objection,  that  the  remedy  of  the  complainant  was  at  law;  because 
he  did  not  demur  to  the  bill,  or  state  that  objection  in  his  answer.' 


2*23        FRY  ON"  SPECIFIC  PERFOKMAXCE  OF  COXTKACTS, 


CHAPTER  IX. 

OF  THE   ILLEGALITY    OF   THE   CONTRACT. 

§  450.  The  illegality  of  a  contract  or  of  any  i)art  of  a  con- 
tract is,  of  course,  a  bar  to  its  specific  performance,  as  well 
as  to  every  other  proceeding  by  which  either  of  the  parties 
may  seek  to  enforce  it,  (a)  The  interference  of  the  court  is 
prevented,  Avhether  the  contract  was  illegal  at  the  time 
of  its  being  entered  into,  or  was  then  legal  but  has  been 
rendered  illegal  by  subsequent  statute  law  before  its 
execution. (^>)  But  in  the  latter  case  the  court  is,  it  seems, 
anxious  to  find  some  means  of  executing  the  contract  so  far 
as  it  may  be  done  without  violating  the  law,(c)' 

(a)  See  infra,  §  464.  nington  v.  Briecoe,  S  Mod.,  51;  and  intra, 

(b)  Atkinson  V.  Ritchie,  10  East,  530,  534;    §  894. 

Barker  v.  Hodgson,  3  M.  &  S.,  267;  Esposito       (c)  Betteswortli  v.  Dean  of  St.  Paul's,  Sel. 
v.  Bowden,  4  El.  &  Bl.,  963.    See,  also.  Win-    C.  in  Ch.,  66;  Infra,  §  986. 

'  Bide  as  laid  doirn  by  WalicortJi,  Ch.  (in  Pratt  v.  Adams,  7  Paige's  Cb.,  615.)] 
"  It  is  a  well-settled  principle  of  the  common  law,  that  no  court  of  justice  will 
lend  its  aid  to  enforce  the  performance  of  any  contract  or  agreement  which  was 
intended  by  the  parties  thereto  to  contravene  to  provisions  of  a  positive  law, 
or  the  performance  of  a  contract  which  is  contrary  to  public  policy."  Consult, 
under  this  head,  Knowles  v.  Harylton,  11  Yes.,  1G8;  Ewing  v.  Oshaldistone,  2 
Myl.  &  Cr.,  53;  De  Beguis  v.  Arm'istead,  10  Bing.,  107;  Gas-light  Co.  v.  Turner, 
7  Scott,  779;  Wetheuil  v.  Jones,  3  B.  &  A.,  221 ;  Seidenbender  v.  Charles,  4  Serg. 
&Rawle,  159;  Hall  v.  Mullin,  5  Har.  &  Johns.,  193;  Scott  v.  Duflfy,  14  Pa.  St., 
18;  Boutwell  v.  Foster,  24  Yt.,  485;  Brian  v.  Williamson,  7  How.  (Miss.),  14; 
Buxton  V.  Hamblin,  32  Me  ,  448.  Even  where  the  parties  consent,  such  a  con- 
tract cannot  be  decreed.  Fowler  v.  Scully,  72  Pa.  St.,  456.  It  cannot  be  en- 
forced, even  if  after  the  making  of  the  contract  the  statute  has  been  repealed. 
In  such  case  the  court  will  carry  out  the  intention  of  the  parties,  so  far  as  it 
can  do  so  without  a  violation  of  law.  Galliland  v.  Phillips,  1  S.  C,  52;  Bet- 
tersworth  v.  Dean  of  St.  Paul,  Sel.  Cas.  in  Ch.,  66. 

Contract  in  contravention  of  public  policy.^  "The  power  to  declare  a  contract 
void  for  being  in  contravention  of  sound  public  policy,  is  a  very  delicate  and 
undefined  power,  and,  like  the  power  to  declare  a  statute  unconstitutional,  it 
should  be  exercised  only  in  cases  free  from  doubt."  Richmond  v.  Dubuque 
R.  R.  Co.,  26  Iowa,  191. 

Parties  to  the  contract  not  equally  guilty.'}  The  court  will  afford  relief  to  the 
more  innocent  party,  where  ecjuity  requires  it ;  unless,  however,  the  parties  to 
a  contract  sought  to  be  specifically  enforced  are  in  pari  delicto,  as  well  asparti- 
ceps  crirninis.  "Where  both  parties  are  in  delicto,  concurring  in  an  illegal  act, 
it  does  not  always  follow  that  they  stand  in  pari  delicto,  for  there  may  be,  and 
often  are,  very  different  degrees  in  their  guilt.  One  party  may  act  under  cir- 
cumstances of  oppression,  imposition,  hardship,  undue  influence  or  great  ine- 
quality of  age  or  condition,  so  that  his  guilt  may  be  far  less  in  degree  than  that 
of  his  associate  in  the  offense.  And  besides  there  may  be,  on  the  part  of  the 
court  itself,  a  necessity  of  supporting  the  public  interest,  or  public  policy,  in 


ILLEGALITY   OF   THE   COXTUACT.  •?-23 

§457.  In  the  case  of  foreign  contracts,  they  luu-i,  in 
order  to  be  enforced  here,  be  legal  according  to  the  law  of 
this  country  ;  and  this  notwithstanding  that  such  foreign 
contracts  may  have  been  made  with  a  view  to  performance 
al)road  and  to  foreign  laws.  It  is  not  enough  that  they  are 
valid  according  to  the  law  of  the  country  where  they  were 
made.  For  "when  the  courts  of  one  country  aiv  called 
upon  to  enforce  contracts  entered  into  in  another  country, 
the  question  to  be  considered  is  not  merely  whether  the  con- 
tract sought  to  be  enforced  is  valid  according  to  the  laws  of 
the  country  in  which  it  was  entered  into,  but  whether  it  is 
consistent  with  the  laws  and  policy  of  the  county  in  which 
it  is  sought  to  be  enforced. "(cZ) 

§  458.  What  constitutes  illegality  in  all  the  various  spe- 
cies of  contracts  which  may  exist  between  man  and  man  is 
a  subject  of  enormous  dimensions,  regulated  in  part  by  the 
statute  law  of  the  realm,  in  part  by  considerations  of  public 
policy,  (e)  and  in  part  even  by  the  rules  which  the  courts 
have  adopted  for  the  general  protection  of  all  suitors. (/)* 

(d)  Hope  V.  Hope,  8  De  G.  M.  &  G.,  731,    Brownlow,  4  H.  L.  C,  1,  and  the  cases  there 
743;  per  Lord  Ellenborough,  C.  J.,  in  Potter    collected. 

V.  Brown,  6  East,  131.  (/)  Cooth  v.  Jacksou,  6  Ves.,  12. 

(e)  As  to  this  class,  see  Egerton  v.  Lord  


ming  V.  State,  23  lud.,  416;  Scottou  v.  State,  51  id.,  52;  Saudfoss  v.  Jones. 
Cal.,  481;  Reynell  v.  Sprye.  21  L.  J.  Chan.,  G31.  651;  Tracy  v.  Talina-:e,  14 
Y.    162;  Freelove  v.  Cole,  41  Barb.,  318;  Ford  v.  Harriugton,  16  N.  \  .,  285; 


Demm<: 
35 

N.  ^.    ...-,  ^.^. , ,  -   -, 

Lowell  V.  Boston  and  Lowell  R.  R.  Co.,  23  Pick.,  24;  Mount  v.  Waite,  7  John., 
434;  Atlas  Bank  v.  Nahaut  Bank,  3  Met.,  581. 

Consideration  unlatcfuh']  The  illegality  may  refer  to  either  tlie  consideraticm 
or  to  any  of  the  stipulations  of  an  agreement.  A  contract  will  not  be  specitl- 
cally  enforced,  which  grew  immediately  out  of,  or  is  connected  with,  an  act  or 
other  contract  which  is  immoral  or  illegal.  Paton  v.  Stewart,  78  111..  491 ; 
Whittaker  V.  Bond,  63  N.  C,  290;  Armstrong  v.  Talor,  11  Wheat..  2o8;  \\i\- 
son  V.  Spencer,  1  Rand.,  76;  Bowman  v.  Cunningham,  78  111.,  48;  Uoilson  v. 
Swan,  2  W.  Va.,  511 

1  Cases  of  illegality  of  contract  proceed  in  violation  of  public  policy  or  of 
some  fixed  and  artificial  rule  of  the  law,  and  are,  therefore,  considered  as  analo- 
gous with  cases  of  constructive  fraud;  which,  "although  not  onginaling  in 
any  actual  evil  design  or  contrivance  to  perpetuate  a  frauil  or  injury  upon  other 
persons,  are  yet,  by  their  tendency  to  deceive  or  mislead  other  persons,  or  to 
violate  private  or  public  coutidenee,  or  to  impair  or  injure  the  puldic  interests 


(note). 

Cases  of  illegality  of  contract.  ]  Foremost  in  contracts  of  this  nature  are  ngrce- 
ments  respecting  marriage,  known  as  marriage  brokage  contracts  by  which  a 
party  agrees,  for  a  certain  compensation,  to  negotiate  a  marriage  for  the  other. 


224      fi:y  on  specific  pekformat^^ce  of  coxtracts. 

It  will  be  needful  here  only  to  enter  into  tlie  subject  so  far 
as  it  i^ecnliiirly  affects  actions  for  specific  performance. 
i<  l.*>».  The' nature  of  a  defense  founded  on  the  illegality 

Courts  of  equity  relieve  against  them,  on  grounds  of  public  policy.  Drury  v. 
Hook  1  Vern..41'2;  Key  v.  Bradshaw.  2  id.,  102;  Duke  of  Hamilton  v.  Mohun, 
2  id.  'g.")2;  Ke'af  v.  Allen,  id.,  588;  Toclie  v.  Atkins,  1  id.,  451;  Gale  v.  Lin- 
coln id.,  475;  Kemp  v.  Coleman,  1  Selk.,  156;  Baker  v.  White,  2  Vern.,  215; 
ijoyiiton  V.  Hubbard,  7  Mass.,  112.  They  are  deemed  incapable  of  confirma- 
tion and  money  paid  under  them  may  be  recovered.  Cole  v.  Gibson,  1  Ves., 
503;  Smith  v.  "Bruning,  2  Yern.,  392.  See,  also,  the  case  of  Williamson  v. 
Gih'on,  2  Sch.  ct  Lefr.,  355,  in  which  the  doctrine  of  the  court  was  carried  to 
its  utmost  limits. 

Contracts  in  restraint  of  marriage  are  void.']  England  v.  Downs,  2  Beav., 
542;  Conrad  v.  Williams,  6  Hill,  445;  Hailley  v.  Rice,  10  East,  22;  Lowe  v. 
Peers,  Burrows,  2225;  Baker  v.  White,  2  Vern.,  215;  see,  also,  Woodhouse  v. 
Shipley,  2  Atk  ,  535;  Key  v.  Bradshaw.  2  Vern.,  103.  But  conditions,  annexed 
to  gifts,' legacies  and  devises,  in  restraint  of  marriage,  are  not  void,  if  they  are 
reasonable'in  themselves  and  do  not  directly  or  virtually  operate  on  an  undue 
restraint  upon  the  freedom  of  marriage.  Story's  Eq.  Jur.,  §280.  Neither  is 
it  any  objection  to  a  contract  that,  by  its  terms,  it  postpone  the  day  of  marriage, 
provided  that  the  postponement  be  not  unreasonable.  Scott  v.  Tyler,  2  Dick., 
719;  Stackpole  v.  Beaumont,  3  Ves.,  96. 

A  condition  that  a  xmloio  shall  not  marry,  it  is  said,  is  not  unlawful.  Story's 
Eq.  Jur.,  §  285. 

Contracts  in  restraint  of  trade  are  also  void.]  Mitchell  v.  Reynolds,  1  P.  Will., 
181;  Pierce  v.  Fuller,  8  Mass.  Rep.,  223;  but  contracts  in  restraint  of  trade  in 
a  particular  vicinity  are  valid.     Webb  v.  Noah,  Edw.  Ch.,  604. 

A(jreements  whereby  parties  agree  not  to  bid  against  each  other  at  public  auction 
sales  are  void.  Jones  v.  Caswell,  3  John.  Cas.,  29;  Doolin  v.  Ward,  6  John. 
R.,  194;  Wilbur  v.  Howe,  8  id.,  444;  see  Piatt  v.  OUver,  2  McLean,  267. 

Where  contracts  are  eiitered  into  between  parties  pending  a  bill  in  parliament 
for  the  charter  of  a  corporation  for  private  purposes  (as,  for  example,  a  rail- 
way), and  the  agreement  is  to  be  concealed  from  parliament,  in  order  to  pro- 
cure the  bill  to  be  passed  without  the  knowledge  thereof,  and  thereby  to 
produce  a  false  impression,  or  to  mislead  or  suppress  inquiry,  or  to  withdraw 
public  opposition  therefrom,  on  grounds  of  public  or  private  general  interest, 
such  contracts  will  be  held  void,  as  a  constructive  fraud  upon  parliament,  as 
well  as  upon  the  public  at  large.     Story's  Eq.  Jur,,  §  293,  and  note  3  of  cases. 

An  agreement  made  for  a  remuneration  to  commissioners,  appointed  to  take  tes- 
timony, and  bound  to  secrecy  by  the  nature  of  their  appointment,  upon  their 
disclosure  of  the  testimony  so  taken,  is  void.     Cooth  v.  Jackson,  6  Ves.,  12. 

An  assignment  of  the  fees  and  profits  of  the  office  of  keeping  a  house  of  correc- 
tion, and  of  the  profits  of  the  tap-house  connected  with  it,  is  void.  Wethwold 
v.  Halbank,  2  Ves.,  238. 

An  assignment  oftlie  half  pay  of  a  retired  officer  of  the  army  is  void.  Stone 
v.  Lidelledale,  2  Anst.,  533;  McGarty  v.  Goold,  1  Ball  and  Beat.,  389. 

Agreements  founded  iipon  the  suppression  (?/c?'«rt«;«a?  prosecutions,  fall  under 
the  same  consideration.     Johnson  v.  Ogiliby,  3  P.  Will.,  276,  and  note  (1). 

Wager  contracts  which  are  against  the  principles  of  public  policy  or  duty,  are 
void.  De  Costar  v.  Jones,  Coop.,  729;  Atherford  v.  Beard,  2  Y.  Rep.,  610; 
Gilbert  V.  Sykes,  16  East,  150;  Story  v.  Salmon,  71  N.  Y.,  420. 

So  are  contracts  which  tend  to  encourage  champerty. 1  Powler  v.  Knowler,  3 
Atk.,  224. 

Contracts  for  the  buying,  selling  or  procuring  t>/ public  offices  are  void.  Ches- 
terfield v.  Janseen,  2  Ves.,  124;  Hartwell  v.  Hartwell,  4  id.,  811;  Boynton  v. 
Hubbard,  7  Mass.  R.,  119;  see  Becker  v.  Ten  Eyck,  6  Paige,  68.  The  question 
as  to  what  is  a  wager  contract  of  wheat,  etc.,  depends  upon  the  question  as  to 
whether  the  intention  was  to  deliver  or  not.     Bigelow  v.  Benedict,  9  Hun,  429. 


illeCtALity  of  the  conti:act.  225 

of  a  contract  differs  in  its  nature  from  most  other  defenses : 
the  objection  is  rather  that  of  the  public  speaking  through 
the   court,  than   of   the   defendant   as  a  party  to  the  ac- 

Agreetiients  founded  on  corrupt  considerations,  or  moral  turpitude,  are  void. 
Hence,  all  agreements,  bonds  and  securities,  given  as  a  price  for  future  illicit 
intercourse  (prcrmium  pudoris)  or  the  commission  of  a  public  crime,  as  for  tlie 
violation  of  a  public  law,  or  for  the  omission  of  a  public  duty,  are  deemed  in- 
capable of  confirmation  or  enforcement.  Story's  Eq.  Jur.,  g  2!»G,  and  note  of 
cases. 

Contracts  affectimj  public  elections  are  void :  so  are  assignments  of  rights  of 
property,  pendente  lite,  when  they  amount  to  or  partake  of  the  charctor  of  main- 
tenance or  champerty.  Waller  v.  Duke  of  Portland,  3  Ves.,  494;  Stevens  v. 
Bagwell,  15  Ves.,  139;  Strachan  v.  Bander,  1  Eden's  R.,  303. 

In  aises  of  nsury.  where  iJte  tender  coming  into  a  court  of  ecjuity,  asks  for  re- 
lief, it  will  be  denied  him,  and  the  contract  held  as  void.  Story's  Eq.  Jur., 
§  301;  Fanning  v.  Dunham,  5  John.  Ch.,  122. 

Cases  relating  to  gaming  contracts  are  void,  and  equity  will  decree  the  giving 
lip  and  cancelling  of  gaming  securities.  Robinson  v.  Bland.  2  Burr.,  1077; 
Rawdon  v.  Shadwell,  Ambler's  R.,  269:  Woodruff  v.  Farnham,  2  Vern..  291; 
Skipwith  v.  Strother,  3  Hand.,  214;  Woodson  v.  Barrett,  2  Hen.  <k  M.,  80; 
Dade  v.  JMadison,  6  Leigh,  401.  It  would  seem,  however,  that  different  views 
are  held  in  the  various  States.  In  Roberts  v.  Taylor,  7  Porter,  251,  it  is  de- 
cided that  where  money  has  been  lost  by  gaming,  but  ?iot  paid,  equity  will  inter- 
fere to  prevent  its  collection,  as  between  the  original  parties  to  the  contract. 
In  Alabama,  it  is  held  that  an  action  will  not  lie  to  recover  money  lost  on  u 
wager.  Tyndall  v.  Childress,  2  Stew.  &  Port.,  250.  ]Jut  it  seems  that  the 
loser  of  notes  may,  in  that  State,  maintain  a  bill  to  restrain  their  transfer  by 
the  winner,  and  prosecution  of  suit  thereon,  and  this  though  they  were  passed 
by  delivery.  Parker  v.  Callilian,  5  Ala.,  708.  In  Gill  v.  Webb,  2  Monr..  4.  A. 
lost  money  at  the  earning  table  to  B.,  who,  at  the  same  silting,  lost  the  same 
amount  to  C.  A.  gave  his  note  for  the  amount  to  C.  A.  paid  part  of  the  note 
to  G.,  to  whom  it  had  been  transferred.  Held,  that  a  judgment  at  law  for  the 
balance  was  properly  enjoined,  but  that  a  decree  for  the  repayment  of  the 
amount  paid  over  was  erroneous  and  should  be  reversed.  The  same  doctrine 
is  repeated  in  Lj^on  v.  Respass,  1  Litt.,  133;  in  Smith  v.  David.son,  G  J.  J. 
Marsh.,  539,  and  in  Downs  v.  Quarles,  6  Litt.,  489.  These  cases  preciselv  cor- 
respond with  the  ruling  of  Lord  Talbot,  who,  on  one  occasion,  expressed  him- 
self to  the  effect  that  a  court  of  equity  should  not  intermeddle  for  the  recovery 
of  money  paid  over,  between  two  men  who  deliberately  sat  down  for  the  pur- 
pose of  ruinino;  one  another.  Bo.synanct  v.  Dashwood,  Gas.  Tern.  Talb..  40; 
Rawdon  v.  Sha^dwell,  Amb.  R.,  269.  In  McKiravey  v.  Pope,  3  B.  Monr.,  93,  it 
is  decided,  however,  in  unison  with  the  more  recent  English  rule,  that  money 
lost  at  gaming  may  be  recovered,  if  the  bill  is  brought  ^Vilhin  live  years  of  the 
time  of  the  loss.  Money,  knowingly  lent  for  the  purpose  of  gaminir.  it  has 
been  held  in  England,  is  not  recoverable.  :McKimmell  v.  Robinson,  3  Alei'S.  &, 
Welsh.,  434.  There  are,  also,  many  cases  of  this  nature,  winch,  though  of 
themselves,  are  not  illegal,  yet  become  so  by  the  relative  positions  of  the  parties 
concerned.  Thev  may  arise  under  all  circumstances,  and  in  many  different 
phases;  and,  therefore,  whenever  cases  come  before  the  court  in  which  the 
parties  are  placed  in  situations  of  peculiar  confidence  toward  each  other  or 
where  there  exists  fiduciary  relations  of  an  important  nature,  great  care  is  taken 
to  ascertain  whether  or  not  one  party  has  become  a  victim  of  the  ileceil  or  im- 
position of  the  other;  and  if  any  mark  of  direct  fraud  be  discovered,  or  if  it 
appears  that  one  party  has.  for  iiis  own  advantage,  sacnhoed  those  interests 
which  he  is  bound  to  protect,  he  will  not  be  permiited  to  hold  any  such  advan- 
tage. Story's  Eq.  Jur.,  ?5j5  307.  323;  Grilliths  v.  Robins.  3  ^ladd..  191.  Thus, 
contracts  between  parent  and  child,  solicitor  atfd  client,  guardian  and  waixl. 
trustee  and  cestui  que  trust,  and  principal  and  surety,  are  watched  with  the 
closest  scrutiny,  and  that  held  to  be  fraudulent  in  contracts  between  them, 

15 


226        FRY  ON  SPECIFIC  PERF0R5IANCE  OF  CONTRACTS. 

tion.  The  law  discallows  all  proceedings  in  respeet  of  illegal 
contracts,  not  from  any  consideration  of  the  moral  posi- 
tion and  rights  of  the  parties,  but  upon  grounds  of  public 
policy.'    For  if  A.  and  B.  enter  into  a  contract  for  some 

which    iiiuler  other  circumstances,  would  be  considered  as  unquestionable. 
Story's  Eu    Tur    §  ^07  to  §  827.     There  is  another  class  of  cases  in  which  relief 
iso-ranted   on  the  ground  of  constructive  fraud,  or  illegality,  even  where  no 
positive  fraud  infects  the  contract;  and  this  is  where  the  parties  stand,  m  some 
sort  under  the  protection  of  the  law,  either  by  youth,  extreme  age,  character 
or  relationship.     Thus,  the  interests  of  sailors  are  always  treated  with  indul- 
o-cnce      See  Story's  Ex.  Jur..  §  323;  opinion  of  Lord  Stowell,  in  the  Juliana, 
5  Ha"-"-  Adm.  Kep.,  504.     Neither  will  relief  be  denied  where  the  contract  is 
substantially  a  fraud  upon  the  rights,  interests,  duties  or  intentions  of  third 
persons      See  Chesterfield  v.  .Janssen,  2  Ves.,  156.     It  is  upon  this  ground  that 
relief  has  been  granted  in  what  are  called  catching  bargains  with  heirs,  rever- 
sioners and  expectants,  during  the  life  of  their  parents  or  other  ancestors;  1 
Foubl.  Eq.  B.  1 ;  ch.  2,  §  12,  and .  note  (k) ;  Davis  v.  Duke  of  Marlborough. 
"Thei-e  is  always  a  fraud  presumed,"  says  Lord  Hardwicke,  in  Chesterfield  v. 
.Janssen,  "or  inferred  from  the  circumstances  or  conditions  of  the  parties  con- 
tractin"-'  from  weakness  on  the  one  side,  and  usury  on  the  other,  or  extortion 
or  advantage  taken  of  that  weakness.     There  has  always  been  an  appearance 
of  fraud  from  the  nature  of  the  bargain,  even  if  there  be  no  proof  of  any  cir- 
cumvention, but  merely  from  the  intrinsic  unconsciouableness  of  the  bargain. 
In  most  of  these  cases  have  occurred  deceit  and  illusion  in  other  persons,  not 
privy  to  the  fraudulent  agreement.     The  father,  ancestor  or  relation  from  whom 
was  the  expectation  of  the  estate,  has  been  kept  in  the  dark.     The  heir  or  ex- 
pectant has  been  kept  from  disclosing  his  circumstances,  and  resorting  to  them 
for  advice,  which  might  have  tended  to  his  relief  and  also  reformation.  _  This 
misleads  the  ancestor,  who  has  been  seduced  to  leave  his  estate,  not  to  his  heir 
or  family,  but  to  a  set  of  artful  persons  who  have  divided  the  spoil  before- 
hand "     See,  also,  Tuistleton  v.  Griflith,  1  P.  Will.,  310;  Cole  v.  Gibbons,  id., 
293-  Bauo-h  v.  Price,  1  Hill's  R.,  320;  Barnardiston  v.  Lingwood,  2  Atk.,  23o; 
Bowes  V.  Heaps,  3  Ves.  &  Bea.,  117;  Halmerly  v.  Booth,  2  Atk.,  27;  1  Madd. 
Ch.  Pr.,  97.     "Hence  it  is  that,  in  all  cases  of  this  sort,  it  is  incumbent  upon 
the  party  dealinti:  with  the  heir,  or  expectant,  or  reversioner,  to  establish  not 
merely  that  there  is  no  fraud,  but  (as  the  phrase  is)  to  make  good  the  bargain; 
that  is,  to  show  that  a  fair  and  adequate  consideration  has  been  paid.     For  in 
cases  of  this  sort  (contrary  to  the  general  rule)  mere  inadequacy  of  price  or 
compensation  is  sufficient  to  set  aside  the  contract.     The  relief  is  granted  upon 
the  general  principle  of  mischief  to  the  public,  without  requiring  any  particular 
evidence  of  imposition,  unless  the  contract  is  shown  to  be  above  all  exception. 
But  it  is  not  necessary,  in  cases  of  this  kind,  to  establish  in  evidence,  that 
the  full  value  of  the  reversionary  interest  or  other  expectancy  hasbeen  given 
according  to  the  ordinary  tables  for  calculations  of  this  sort.     It  will  be  suffi- 
cient to  make  the  purchase  unimpeachable,  if  a  fair  price  be  given  therefor,  at 
the  time  of  delivery."     Story's  Eq.  Jur.,  §  336,  and  notes  1,  2,  3,  4.     Contracts 
of  this  nature  are,  of  course,  not  void,  but  merely  voidable. 

Another  class  of  constructive  frauds  upon  the  rights  of  third  persons,  em- 
braces all  those  agreements  which  operate  directly,  or  virtually  to  delay,  defraud 
or  deceive  creditors.  The  statute  of  13  Elizabeth,  ch.  5,  as  to  creditors,  which 
has  ))een  universally  adopted  in  America,  declares  all  fraudulent  conveyances 
to  be  void.  The  validity  of  a  conveyance  depends,  in  these  cases,  upon  the 
sufficiency  of  the  consideration.  If  that  be  adequate,  equity  will  not  interfere 
upon  the  ground  of  constructive  fraud.     Story's  Eq.  Jur.,  §  353. 

1  Public  iwlicy ;  examples  of  contracts  void  as  against.']  The  procuring 
of  legislation  by  improper  means;  personal  influence  with  the  member 
is  such.  Marshall  v.  Baltimore  and  Ohio  Railroad  Co.,  16  How.,  314; 
Chippinger  v.  Hopbaugh,  5  Watts  &  Serg.,  315;  Rose  v.  Truax,  21  Barb., 
361;   Usher   v.  McBratney,   3  Dil.,   385.      An    agreement    which    promised 


ILLEGALITY   OF   THE    COXTEACT.  227 

illegal  act  to  be  performed  by  A.,  to  which  both  are  alike 
privy,  and  A.  do  his  part  in  the  business,  B.  has,  it  seems, 
no  moral  right  to  refuse  performance  of  his  part,  provided 
there  be  iiothing  immoral  in  that  ]3art  abstracted  from  the 
general  end  of  the  contract ;  as,  for  instance,  if,  nnder  a 
contract  to  ship  goods  contrary  to  law,  A.  ship  the  goods, 
B.  has  no  ground  in  natural  equity  for  refusing  to  pay  the 
stipulated  price  :  A.  and  B.  were  equal  in  the  culpability  of 
the  contract,  but  B.  does  a  fresh  wrong  by  refusing  pay- 
ment :{(/)  but  it  is  a  wrong  for  which  no  remedy  is  afforded 
by  the  law,  for  ex  dolo  inalo  non  oritur  actio.  "It  is  not 
for  his  (the  defendant's)  sake,"  said  Lord  Mansfield,  C.  J., 
"that  the  objection  is  ever  allowed;  but  it  is  founded  in 
general  i^rinciples  of  iDolicy,  which  the  defendant  has  the 

{g)  There  is  a  diflerence  of  opinion  amonprst  be  enforced.    See  Grot,  de  Jur.  Bell,  ac  Pac. 

the  jurists  as  to  the  binding  nature  of  the  lib.  ii,  c.  xi,  s.  9;  Pothler,  Tr.  desOblij,'.,I'art 

promise,  In  the  case  above  stated,  in  foro  I,  chap.  1,  sect.  1,  art.  3,  §  6. 
conscientice;  though  all  agree  that  it  cannot 


to  pay  another  for  procuring  a  government  contract  for  furnishing  sup- 
plies. Tool  Co.  V.  Norris,  2'  Wall.,  45.  That  a  pubUc  officer  should  resign  in 
order  that  another  should  have  his  office.  Parsons  v.  Thompson,  1  II.  Bl.,  323: 
Eddy  V.  Capron,  4  R.  I.,  395.  That  one  officer  should  exchange  his  office  -with 
another.  Stroud  v.  Smith,  4  House  (Del.),  448.  A  contract  tliat  aid  should  be 
civen  to  obtain  the  appointment  to  office  of  a  third  party.  Gray  v.  Hook,  4 
N.  Y.,  449.  That  a  bid  will  not  be  made  for  the  labor  of  convicts.  Gibbs  v. 
Smith,  115  Mass.,  592.  Thca  s^natures  shall  be  procured  to  a  pardon,  and 
tlic  same  obtained  from  the  Ps\ecutive.  Hatzfield  v.  Golden,  7  Watts.  152.  A 
railroad  company's  conlracl  that  they  will  not  maintain  a  depot  at  or  near  a 
given  place.  St.  Joseph  R.  R.  Co.  v.  Rvan,  11  Kan.,  602.  To  pay  the  agents 
of  a  railroad  company  a  given  sum,  provided  they  locate  the  road  m  a  given 
place.  Fuller  v,  Danle,  18  Pick.,  472;  Pacific  R.  R.  Co.  v.  Scely.  45  Mo.,  212. 
A  combination  for  street  improvement,  agreeing  to  pay  some  who  will  conae 
into  the  scheme.  Maguire  v.  Smock,  42  Ind.,  1 ;  Howard  v.  First  Ind.  Churcli, 
18  Med.,  451,  A  contract  that  a  right  be  waived,  which  is  in  contravention  of 
State  poliov.  Branch  v.  Tomlinson,  77  N.  C,  388.  Contracts  m  restr.aint  of 
marriage.  ^  Lowe  v.  Peers,  4  Burr,  2225;  Baker  v.  White  2  \  em  21o;  \\  ood- 
housc  V.  Shepley,  2  Atk  ,  535;  Cook  v.  Richards,  un  es.,  429;  Phillips  v. 
>,l.dburv,  7  ConI    567;  Conrad  v.  Willlan^s,  6  Hill,  444;  Enghtnd  ^^  Downes 

1  Beav.:  96;  Rarltey  v.  Rice,  10  East,  22j  Sterling  v.  ^^i^ii't'  ^  o"-  ^.f ''"l^' •^^.• 
Eldred  V.  Malroy,  2  Col.  (Ter.),  320;  loung,  ex  parte  C  B.^  53.  A  mai- 
ria"-e  brokerage  contract.  Roberts  v.  Roberts,  3  P.  ^V  ms. ,  ,  4 ;  Drurj  \  ^  Uooke. 
iVern  412;  Smith  v.  Aykwell,  3  Atk.,  566;  Boynton  v.  HnJ.bard,  .  Miu... 
nl  A  contract  for  the  ^hase  of  land  ^on^f.^^^^^^^^'f^ 
fvmd  of  the  laws  of  the  same.  Brake  v.  Ballon,  19  Kan.,  3J- ,  Mniin  v.  joun 
ion  37  Ala!, l£  ' The  contracts  of  a  public  enemy;  no  o-;?-  -f"-^;  -- 
for  his  benefit.     Brandon  v.  Nesbitt  6  Term.  Rep.,  ^'^ •  fj  !.7,\"^;;,^;,J"te  "u- 

2  V.  &  B.,  323;  Musson  v.  Tales    16  Mass..  334.  ,f^,.^^'^"^'^'^.\.J  ""^iVpicr 
fnropd  which  is  in  restraint  of  trade  or  business.     Alger  \ .  UKitcntr,  t  J  i  icw., 

^1^  bS'v   Cofeman.  4 S,  isi;  Craig  v.  State  of  Missouri,  id.,  4S6. 


228        FRY  ON  SPECIFIC  PERFOEMANCE  OF  CONTRACTS. 

advantage  of,  contrary  to  the  real  justice  between  him  and 
the  plaintiff— by  accident,  if  I  may  so  say."(70  Where  the 
defendant  has  received  the  benefit  of  the  contract,  this  de- 
fense is  evidently  an  unrighteous  one,  and  will  accordingly 
be  received  by  the  court  with  some  degree  of  disfavor.  (/) 

J5  460.  The  principle  on  which  this  defense  reposes  is 
shown  by  the  cases  on  the  specific  performance  of  awards  ; 
for  the  illegality  of  the  act  directed  to  be  done  by  the  award 
will  be  a  ground  for  refusing  specific  performance,  although 
the  unreasonableness  of  the  act  would  be  no  ground,  it  being 
a  decision  by  the  judge  chosen  by  the  parties. (./)  It  is 
further  illustrated  by  this,  that  where,  in  a  suit  for  sx)ecific 
performance,  a  fact  not  put  in  issue  by  either  party  has 
come  out  on  the  evidence  affecting  the  legality  of  the  con- 
tract, it  has  been  noticed  by  the  court,  which  has  not  pro- 
ceeded without  directing  an  inquiry.  (^) 

§  461.  As  to  the  clearness  of  the  illegality  which  will  be 
a  bar  to  specific  performance,  there  is  perhaps  some  slight 
diversity  of  expression.  In  Johnson  v.  Shrewsbury  and 
Birmingham  Railway  Co.,(Z)  Knight  Bruce,  L.  J.,  laid  it 
down  that,  before  the  court  would  enforce  the  specific  per- 
formance of  a  contract,  it  must  be  satisfied  that  there  is  not 
a  reasonable  ground  for  contending  that  the  contract  is 
illegal  or  against  the  policy  of  the  law:  and  in  another 
case,(m)  Turner,  L.  J.,  refused  to  enforce  a  contract  for  sale 
which  he  held  to  have  been  entered  into  for  the  purpose  of 
acquiring  the  right  to  set  aside  a  transaction  for  fraud  com- 
mitted on  the  vendor  to  the  plaintiff :  he  declined  to  deter- 
mine whether  the  contract  was  tainted  Avith  champerty  or 
maintenance ;  but  held  that  the  right  to  complain  of  fraud 
was  not  a  marketable  commodity.  But  in  a  case  on  a  con- 
tract by  a  solicitor  retiring  from  a  firm,  to  allow  his  name  to 
be  used  after  his  retirement,  Lord  Hatherley  (then  Wood, 
V.  C.)  observed,  "the  agreement  must  be  legal  or  illegal, 
and  it  is  not  within  the  discretion  of  the  court  to  refuse 
specific  performance,  because  an  agreement  savors  of  ille- 
gality.    It  must  be  shown  to  be  illegal.  "(''O 

(h)  In  Holman  v.  Johnson,  Cowp.,  343.  (k)  Parken  v.  Whitby,  T.  &  R.,  366;  Evans 

(I)  Shrewsbury  and  Birmingham  Railway  v.  Richardson,  3  Mer.,  469. 

Co.  V.  London  and  Xorth-Western  Railway  (Z)  3  De  G.  M   &  G.,  914.    See,  also,  City  of 

Co.,  IG  Beav.,  44.    See,  also,  supra,  §  318,  and  London  v.  Nash,  3  Atk.,  512;  S.  C,  1  Ves. 

cf.  Williams  v.  The  St.  George's  Uarbor  Co.,  Sen.,  12. 

2  De  G.  &  J.,  547.  .5.58.  (m)  De  Hoghton  v.  Money,  L.  R.  2  Ch.,ie4. 

0)  Wood  V.  Griffith,  1  Sw.,  43.  (n)  Aubin  v.  Holt  "  K    &  J.,  70. 


ILLEGALITY    OF   THE   CO^sTTRACT.  229 

§  462.  Where  a  trust  is  constituted,  designed  to  give 
effect  to  a  contract  in  itself  incapable  of  being  enforced,  and 
the  trust  is  in  itself  perfectly  lawful  and  independent  of  the 
contract,  except  so  far  as  that  may  be  necessary  to  explain 
the  constitution  of  the  trust,  there  the  trust  may  be  en- 
forced, and  by  means  of  it  the  contract  incidently  per- 
formed. This  principle  was  acted  on  in  the  case  of  Powell 
V.  Knowler,(o)  before  Fortescue,  M.  R.,  wdiere  A.  and  B. 
entered  into  a  contract  for  the  division  of  an  estate  to  be 
recovered,  which  was  incapable  of  being  enforced  on  the 
ground  of  champerty,  and  the  party  who,  according  to  the 
contract,  w^as  to  convey  part  of  the  estate  to  the  other,  by  a 
codicil  directed  the  contract  to  be  carried  into  execution, 
and  created  a  trust  for  that  purpose  ;  the  trust  was  specifi- 
cally enforced  against  the  trustee. 

§  463.  The  principle  of  this  case  is  in  analogy  with  that 
of  several  other  cases.  Thus  where  an  act,  though  the 
result  of  an  unlawful  contract,  is  itself  lawful,  it  may  foim 
the  consideration  for  a  lawful  contract,  as,  for  instance, 
the  actual  transfer  of  stock,  the  contract  for  which  was 
illegal,  (i^*)  Similarly  a  trustee  into  whose  hands  money  is 
paid  on  account  of  a  third  person  cannot  set  up  the  ille- 
gality of  the  trust  under  which  the  money  was  so  paid, 
though  the  cestui  que  trust  could  not  have  enforced  his 
right  against  the  payer  directly,  as  in  that  case  he  could 
only  have  got  at  the  money  through  the  illegal  contract. (</) 

§  464.  The  position  of  the  court  wdth  regard  to  illegal 
contracts  was  thus  stated  by  Jessel,  M.  R.,  in  a  recent 
case.(r)  ''I  think,"  said  his  lordship,  "the  principle  is 
clear  that  you  cannot  directly  enforce  an  illegal  contract, 
and  you  cannot  ask  the  court  to  assist  you  in  carrying  it 
out.  You  cannot  enforce  ic  indirectly  ;  that  is,  by  claiming 
damages  or  compensation  for  the  breach  of  it,  or  contribu- 
tion from  the  persons  making  the  profits  realized  from  it. 
It  does  not  follow  tliat  you  cannot,  in  some  cases,  recover 
money  paid  over  to  tliird  persons  in  pursuance  of  the  con- 
tract;  and  it  does  not  follow  that  you  cannot,  in  other 
cases,  obtain,  even  from  the  parties  to  the  contract,  mom^ys 
which  they  have  become  possessed  of  by  represt^itations 

(o)  "  Atk    ""4  ('/)  Thomson  v.  Thomson,  7  Vcs.,  470 ;  Ten" 

(p)  k'Caiiau  ;.  Mortimer.  0  M.  &  W..  CSC.    "'^VrJ^-kl^s"'.  B^a*on.  llCh.  D..  170. 


230        FllY  ox  SPECIFIC  PERFOKMANCE  OF  CONTRACTS. 

that  the  contract  was  legal,  and  which  belonged  to  the  per- 
sons who  seek  to  recover  them. "(5) 

§  465.  Trade  unions  being,  apart  from  the  trade  union 
act,  1871,  illegal  associations,  the  court  will  not,  at  the 
instance  of  a  member  of  such  an  union,  enforce  a  contract 
contained  in  its  rules  for  providing  benefits  for  its  mem- 
bers. (^)' 

(s;  11  Ch.  D.,197.    (t)  Bigby  v.  Connol.U  Ch.  D.,482;  cf.  Duke  v.  Ltttleboy,  28  W.  R,  977. 

1  Where  the  consideration  is  immoral.']  Such  contracts  are  never  enforced  at 
law  or  in  equity.  An  agreement  for  the  commission  of  crime,  or  in  violation 
of  a  statute  law.  or  the  writinsi,  printing  or  sale  of  an  immoral  or  libelous  book 
or  picture.  Trovinger  v.  McBurney,  s'Cow.,  253;  Fores  v.  Johns.,  4  Esp.,  97; 
Poplet  v.  Stockdale,  R.  &  M.,  337. 

Contract  forbidden  hy  statute  law.'\  It  is  hardly  necessary  to  say  that  such 
agi-eements  are  always  void.     Tucker  v.  West,  29  Ark.,  388. 

Prohibitory  icords  in  statute.]  The  rule  is  now  well-settled,  that  although 
there  are  no  prohibitory  words  in  statute,  that  a  penalty  imparts  a  prohibition. 
Bartlett  v.  Vinor,  Carth.,  252;  Little  v.  Poole,  9  B.  &  C.  192;  Caunan  v.  Bryce, 
3  B.  &  Aid.,  179;  De  Begnis  v.  Armistead,  10  Bing.,  107;  Foster  v.  Taylor,  5 
B.  &  Aid.  896;  Ferguson  v.  Norman,  6  Scott,  794;  Mitchell  v.  Smith,  4  Dall., 
209-  Pray' v.  Burbank,  10  N.  II.,  377;  Sharp  v.  Lease,  4  Halst.,  352;  Seiden- 
hender  v.  Charles,  4  Serg.  &  Rawle,  159;  Harris  v.  Runnels,  12  How.,  80; 
Coombs  V.  Emery,  14  Me.,  404;  Terrett  v.  Bartlett,  21  Vt.,  184;  White  v.  Bass, 
3Cush.,  449. 

Ustiri/  affecting  the  contract.]  Such  contracts  cannot  be  enforced  specifically. 
Belcher  v.  Vardon,  2  Col.,  173.  A  plaintiff  seeking  the  aid  of  a  court  of  equity 
from  a  contract  usurious  in  its  nature,  must  expect  relief  only  upon  the  terms 
of  paying  what  is,  in  fact,  due  to  the  defendant.  Where  he  does  not  offer  to 
do  so,  the  pleadings  may  be  demurred  to.  Story's  Eq.  Jur.,  g  301 ;  Burfield  v. 
Solomons,  9  Ves.,  84;  Rogers  v.  Rathbun,  1  John.'s  Ch  ,  3G7;  Ballenger  v.  Ed- 
wards, 4  Ired.  Eq.,  449;  Beard  v.  Bingham,  76  N.  C,  285. 

War/ering  co7itracts.]  A  wager  is  "a  contract  in  which  the  parties  stipulate 
that  they  shall  gain  or  lose  upon  the  happening  of  an  uncertain  event  in  which 
they  have  no  interest,  except  that  arising  from  the  possi])ility  of  such  gam  or 
loss."  Fareira  v.  Gobell,  89  Pa.  St.,  90.  Such  contracts  were  laAvful  at  com- 
mon law.  Chitty  on  Con.,  Glo.  An  action  will  be  sustained,  brought  to  com- 
pel a  gambling  security  to  be  given  up  to  be  canceled.  Rawdeu  v.  Shadwell, 
Ambler,  269;  "Basket  v.  Wotman,  1  Nott.  A;  McCord,  180;  Wood  v.  Wood,  2 
Murphy,  172;  Forrest  v.  Hunt,  id.,  458;  Martin  v.  Terrell,  12  Sm.  &  Marsh, 
571;  contra,  Cowles  v.  Raquet,  14  Ohio,  55.  The  entire  contract  is  void, 
where  a  part  of  the  consideration  of  the  same  was  lost  and  won  at  gambling. 
Reed  v.  Reeve,  13  Bush.  (Ky.),  447. 

Frustratinrj  the  administration  of  justice.]  No  contract  which  has  this  for  its 
object,  can  ever  be  enforced;  that  evidence  shall  be  withheld  and  the  like. 
Kimbromrh  v.  Lane,  11  Bush.  (Ky.),  550.  A  contract  was  made  with  a  partv 
to  pay  him,  he  being  a  witness  in  a  cause  on  trial,  provided  his  evidence  should 
lead  to  a  favorable  result  for  the  party  calling  him.  Held,  that  such  contract 
was  void.  Pollock  v.  Gregory,  9  Bosw.,  IIG;  Nickleson  v.  Wilson,  6  N.  1., 
362;  reversing  S.  C,  1  Hun.,  615,  is  an  instructive  case  on  this  point. 

Compounding  a  felony  ]  Where  a  contract  is  sought  to  be  avoided  on  the 
ground  that  the  consideration  was  the  compounding  a  felony,  it  must  be  shown 
that  the  compounding  the  felony  was  the  consideration  for  the  contract  m 
question.  The  consideration  of  an  instrument  was  6o/ia^/?ffe,  and  the  debtor 
was  under  an  obligation  to  pay  or  secure  the  same.  Held,  that  a  threat  of  a 
criminal  prosecution,  unless  a  mortgage  is  given,  does  not  compound  the  offense- 
Plant  V.  Gunn,  2  Woods.,  372. 


ILLEGALITY  OF  THE  CONTKACT.  231 

Contract  for  goods  pin-ehased  for  an  illefjal  purpose.]  "Where  an  action  is 
brouirht  to  recover  the  price  of  goods  sold,  the  vendor  knowing  that  they  were 
purchased  for  an  illegal  purpose — Held,  that  it  was  no  defense,  provided  it  was 
not  made  a  part  of  the  contract  that  they  should  be  used  for  that  purpose :  and 
also  provided,  that  nothing  has  been  done  by  the  vendor  in  furtherance  of  the 
unlawful  design.  Holman  v.  Johnson,  Cowp.,  341:  Faikney  v.  Reynous,  4 
Burr,  2069;  Hodgson  v.  Temple,  5  Taunt.,  181;  Merchants'  Bank  v.  Sjpalding, 
13  Barb.,  303;  Armstrong  v.  Toller,  11  Wheat.,  258;  Tracy  v.  Talmage,  14 
N.  Y.,  163;  McKinny  v.  Andrews,  41  Texas.  863;  contra,  Langdon  v.  Hughes, 
1  Maule  &  Seld.,  593.  Walworth,  Ch.,  in  De  Groot  v.  Vanduzer,  20  Wend., 
390,  gives  a  very  clear  exposition  of  the  law  on  this  question:  "There  are, 
undoubtedly  many  conflicting  decisions  upon  the  question,  how  far  the  vendor 
of  an  article  is  chargeable  with  a  participation  in  the  illegal  purpose  for  which 
it  is  intended  to  be  used,  from  a  mere  knowledge  of  the  fact  that  the  purchaser 
intends  so  to  use  it.  The  case  of  the  druggist  who  sold  drugs  to  a  brewer, 
knowing  that  he  intended  to  use  them  in  brewing,  contrary  to  the  statute,  is  a 
very  strong  case  in  favor  of  extending  the  principle  to  a  collateral  contract, 
which  had  no  necessary  connection  with  the  violation  of  the  law.  That  case 
shows,  too,  that  where  the  agreement  is  made  for  the  purpose  of  aiding  the 
violation  of  the  law,  it  is  not  necessary  to  aver  and  prove  that  the  offense  was, 
in  fact,  consumated  by  an  actual  violation  subsequent  to  the  agreement,  which 
agreement  is  void  from  the  beginning.  Langton  v.  Hughes,  1  Maule  ifc  Seld., 
593.  If  a  trader  agrees  to  furnish  a  robber  with  arms  and  ammunition  for  the 
purpose  of  carrying  on  his  business  of  highwayman,  it  cannot  be  a  valid  answer 
to  the  illegality  of  Ihe  contract,  that  the'arms  and  anmiunition  sold  to  him  for 
that  purpose  were  not,  in  fact,  used  in  the  prosecution  of  the  illegal  object 
originallv  intended  at  the  time  of  the  purchase.  The  illegality  of  the  contract 
consists  'in  the  intention  to  aid  in  a  violation  of  the  law,  or  of  a  principle  of 
public  policy,  or  to  commit  a  breach  of  good  morals,  and  not  in  the  actual 
consummation  of  the  oflense.  These  cases  in  which  an  independent  contract 
has  been  held  void  from  a  mere  knowledge  of  the  fact  of  the  illegal  end  in 
view,  proceed  on  the  ffround  that  the  party  having  such  knowledge,  intended 
to  aid  the  illegal  object  at  the  time  he  made  the  contract;  and  whenever,  there- 
fore, that  intention  "is  .shown,  no  doubt  can  exist  as  to  the  propriety  of  applying 
the  rule  that  no  action  or  claim  can  be  sustained  in  a  court  of  justice  founded 
upon  such  contract." 

Contracts  in  cases  ichere  the  parties  siisiain  fiduciary  relations  to  each  other.'] 
Such  contracts  are  those  between  attorney  and  client,  guardian  and  ward,  parent 
and  child,  physician  and  patient,  principal  and  agent,  and  trustee  and  cestui 
que  trust.  Such  agreements  are  rarely  enforced,  and  are  regarded  with  sus- 
picion. Goddard  v.  Carlisle,  9  Price,  169;  Fox  v.  McKrath,  2  Bro.  C.  C,  407; 
Baker  v.  Bradlev,  35  Eng.  Law  6c  Eq.,  419;  Wolmesley  v.  Booth,  2  Atk.,  25; 
Edwards  v.  Mvrick,  2  Hare,  60;  Billing  v.  Southee,  10  Eng.  Law  &  Eq.,  37; 


Dent  v.  Bennett,  4  M.  6c  C,  269;  Dawson  v.  Massey,  1  B.  &  B.,  226;  Hylton  v. 
Hvlton,  3  Yes.,  548;  Hatch  v.  Hatch,  9  id.,  293;  Cecil  v.  Plaistour,  1  Aust.,  202; 


heesv.  Presbyterian  Church,  8  Barb.,  136;  Blackmore  v.  Shelly,  8  Humph., 
439;  Dobsou  v.  Racev,  3  Sandf.,  61;  Pratt  v.  Thornton,  28  3[e.,  33o;  \an 
Epps  V.  Van  Epps,  9  Paige's  Ch.,  207;  Farnam  v.  Brooks,  9  Pick.,  212;  King 
v.  Baldwin,  2  John.  Ch.,  554;  Bank  of  N.  S.  v.  Etting,  11  AVhcat.,  59;  Kerr 
on  Fraud,  161,  162. 

Equity  of  redemption.]  Contracts  between  mortgagor  and  mortgagee,  which 
have  for  their  object  the  extinguishment  of  the  etiuity  of  redemption,  are 
viewed  with  great  suspicion  by  the  courts;  yet  a  new  contract  matle  betweea 
them  whereby  the  title  becomes  absolute,  if  it  is  fair,  will  not  be  disturbed. 
Remsen  v.  Hoy,  3  Edw.  Ch.,  535;  Wilson  v.  Carpenter,  62  Ind.,  495. 


232         FRY  ox  SI'ECIKIC  I'Er.FOKMANCE  OF  CONTKACTS. 


CHAPTER  X. 

OF   THE   CONTKACT  BEING  ULTRA   VIRES. 

§  466.  Corporations  created  for  special  purposes  have  a 
power  to  contract,  but  within  certain  limits  only,  and  all 
contracts  in  excess  of  their  powers,  or  ultra  vires,  are  void, 
and,  therefore,  necessarily  incapable  of  being  enforced  in 
any  legal  proceeding.  This  subject  has  of  late  years  under- 
gone great  discussion  in  respect  of  contracts  by  railway  and 
other  companies.' 

§  467.  A  contract  entered  into  by  such  a  corporation  in 
the  proper  form  is  prima  facie  good,  and  the  onus  lies  on 

J  In  Barry  v.  TMercliants'  Exchange  Company,  1  Sandf.  Cli.,  280,  it  is  de- 
cided tliat  every  corporation  has,  as  such,  at  common  law,  the  capacity  to  take 
and  "-rant  property,  and  to  contract  obligations  in  the  same  manner  as  an  indi- 
vidual; that,  except  when  restrained  by  law,  it  has  the  absolute  7«s  disponendi 
of  its  property,  whether  of  lands  or  chattels,  and  in  its  exercise  is  unlimited  as 
to  objects  and  quantity ;  and  when  created  for  limited  and  specific  purposes,  by 
the  nature  of  which  "its  common-law  powers  are  restricted,  it  may  make  all 
contracts  necessary  and  usual  in  the  course  of  its  business,  as  means  to  effect 
its  objects;  and  within  these  limits,  unless  especially  prohibited  by  law,  or  the 
provisions  of  its  charter,  may  deal  precisely  as  an  individual  might,  who  sought 
to  accomplish  the  same  ends.  The  powers  of  a  corporation  are  to  be  ascer- 
tained by  a  reference  to  the  acts  of  the  legislature  concerning  it ;  and  a  corpora- 
tion can  have  no  powers  not  specially  granted  to  it,  or  such  as  are  incidental  or 
necessary  to  give  effect  to  those  specially  granted.  State  v.  Mayor  of  Mobile, 
5  Porter,  279.  And  there  is  no  rule  more  plainly  established  than  that  these 
powers  must  not  be  exceeded.  Binney's  Case,  2  Bland,  99.  Therefore  a  cor- 
poration constructing  works  beyond  that  which  is  necessary  for  the  purposes  of 
their  incorporation,  and  beyond  what  is  contemplated  liy  their  charter,  will  be 
restrained,  by  injunction,  from  continuing  their  erections  beyond  the  limits 
allowed.  Newark  Plank-road  Co.  v.  Elmer,  1  Stock.  (N.  J.),  754.  Smith  v. 
Morse.  2  Cal.,  524,  is  an  analogous  case  with  Newark  Plank-road  Co.  v.  Elmer, 
and  Binney's  case.  A  very  forcible  instance  of  the  rigidity  of  the  doctrine  is 
presented  in  the  case  of  Russell  v.  Topping,  5  McLean,  194.  In  this  case,  A. 
mortgaged  several  tracts  of  laud  to  the  plaintiff  in  ejectment,  and  afterwards 
mortgaged  one  of  the  tracts  to  an  incorporated  bank.  The  plaintifl"  foreclosed 
his  mortgage  in  chanceiy,  making  the  bank  a  party  defendant.  The  bank 
answered  that  A.  had  mortgaged  to  them,  subsequently  to  the  plaintiff's  mort- 
gage, several  parcels  of  land,  but  not  the  lot  in  dispute ;  that  he  was  largely 
indebted  to  them,  and  was  then  insolvent,  and  prayed  that  the  lands  not  in- 
cluded in  tlieir  mortgage  should  first  be  sold  to  pay  plaintiff's  debt,  and  that  the 
lands  included  in  their  mortgage  should  be  sold  only  in  the  event  of  the  other 
lands  not  being  sufficient  to  pay  the  plaintiff's  debt.  Decree  accordingly.  At 
the  sale  the  bank  ]nirchased  the  lot  in  question  and  took  a  conveyance.  The 
defendant  claimed  throiurh  the  bank.  The  plaintiff  received  the  purchase 
money  paid  by  the  bank,  and  A.  being  otherwise  indebted  to  him,  the  plaintiff 
brought  suit  against  him,  recovered  judgment,  levied  execution  on  the  land  in 


CO^s^TRACT   BEING    ULTKA    YIKES.  233 

the  person  alleging  it  to  be  void  to  show  that  it  is  in  excess 
of  the  corporation's  powers,  and  not  on  the  person  relying 
on  it  to  show  that  the  corporation  was  authorized  to  enter 

controversy,  and  became  the  purchaser.  By  its  charter  the  bank  was  prohibited 
from  purchasing,  holding  and  conveying  real  estate,  except  such  as  was  re- 
quired for  the  transactio^n  of  its  business,  or  such  as  had  been  mortgaged  as 
security  for  previous  loans,  or  such  as  had  been  conveyed  to  it  in  satisfaction 
of  debts  previously  contracted  in  the  course  of  its  dealings,  or  such  as  had  been 
purchased  at  sales  upon  judgments,  mortgages  or  decrees,  obtained  or  made 
for  such  debts.  Held,  that  the  bank  was  not  competent  to  ac<iuire  any  title  to 
the  lot  in  question  at  the  sale;  and  that  the  plaintiff  was  entitled  to  contest  the 
validity  of  the  sale  to  the  bank,  notwithstanding  he  had  received  the  purchase 
money.  In  the  case  of  the  Mechanics'  and  Savings  Bank  v.  Meriden  Agency, 
24  Conn.,  159,  a  joint-stock  company  organized,  as  expressed  in  their  articles 
of  association,  "  to  do  a  general  insurance  agency,  commission  and  brokerage 
business,  and  such  other  "things  as  are  incidental  to,  and  necessary  in,  the  man- 
agement of  that  business,"  was  held  to  have  no  power  to  subscribe  to  the  stock 
of  a  savings  bank  and  building  association.  Neither  has  an  insurance  company 
any  authority  to  subscribe  to  the  stock  of  a  mutual  insurance  company,  and 
agree  to  give  its  notes  in  advance  for  premiums  on  insurance  subsequently  to 
be  effected.  Berry  v.  Yates,  24  Barb.,  199.  Kor  is  a  plank  road  company 
authorized  to  loan  money,  unless  there  is  a  special  clause  in  the  charter  to  that 
effect.  Madison,  etc.,  Plankroad  Co.  v.  Watcrtown,  etc.,  Plankroad  Co.,  5 
Wis.,  173.  .It  must  not  be  understood,  however,  that  corporations  have  no 
other  powers  than  those  strictly  conferred  by  charter.  As  has  already  been 
said,  an  act  of  incorporation  carries  with  it  all  the  powers  necessary  to  accom- 
plish the  act,  unless  it  impairs  vested  rights.  IMorris  and  Essex  R.  R.  v.  New- 
ark, 2  Stockt  (N.  J.),  352;  Strauss  v.  Eagle  Insurance  Co.,  5  Ohio,  .59.  The 
rule  is,  that  if  the  means  employed  are  reasonably  adapted  to  the  ends  for 
which  the  corporation  was  created,  they  come  within  its  implied  or  incidental 
powers,  though  they  may  not  be  specitically  designed  by  the  act  of  incorjiora- 
tion.  Madison,  etc.,  Plankroad  Co.  v.  Watertown,  etc.,  Plankroad  Co.,  5  U  is., 
173.  So,  a  corporation  has,  as  incidental,  a  right  to  make  an  agreement  with 
an  agent  to  compensate  him  for  obtaining  subscriptions  to  the  slock.  Cincin- 
nati, Indianapolis  and  Chicago  R.  R.  Co.  v.  Clarkson,  7  Ind.,  595.  Another 
incidental  power  is  that  of  the  corporation  to  create  debts.  Barry  v.  :\Icrchants 
Exchange  Co.,  1  Sandf.  Ch.,  280.  But  where  the  charter  makes  peculiar  speci- 
fications, as,  for  example,  of  modes  of  investing  the  corporate  funds,  all  other 
modes  of  investment  are  precluded.     Scott  v.  De  Pey.ster.  1  Edw.  Ch.,  513. 

The  rights  of  strangers  dealing  with  corporations  may  vary,  according  as  the 
act  is  ^lUra  vires  in  one  or  the  other  of  these  senses.  When  an  act  is  ultra  rires  in 
the  first  sense  mentioned,  it  is  generally,  if  not  always,  void  in  toto,  and  the  cor- 
poration may  avail  itself  of  the  plea.  But  when  it  is  ultra  tires  in  the  secontl 
sense,  the  right  of  the  corporation  to  avail  itself  of  the  plea  will  depend  upon 
the  circumstances  of  the  case.  In  the  former  case,  the  liefeuse  ot  ultra  n;rjt  is 
available  to  the  corporation  as  against  all  persons,  because  thi'y  are  bountl  to 
know  from  the  law,  of  its  existence,  that  it  has  no  power  to  iierform  the  act. 
But  in  the  latter  case,  the  defense  may  or  may  not  be  available,  depending  upon 
the  question  whether  the  partv  dealing  with  the  corporation  is  aware  _ol  the 
intention  to  perform  the  act  for  an  unauthorized  purpose,  or  under  circum- 
stances not  justifying  its  performance.  And  the  test  as  benyeen  strangers 
having  no  knowledge^of  an  unlawful  purpose  and  the  corporation,  is  to  eoni- 
pare  the  terms  of  the  contract  with  the  provisions  of  the  law  from  wliicli  tlie 
corporation  derives  its  powers;  and  if  the  court  can  .see  that  the  act  to  be  per- 
formed is  necessary  bevond  the  powers  of  the  corporation  for  any  purpose,  the 
contract  cannot  be  enforced,  otherwise  it  can."  Miners^  l)iteh  Co.  v.  ^ellcu- 
back  37  Cal  ,  543;  Whitnev  Arms  Co.  v.  Barlow,  G3  N.  \..  02;  Pi-nu.sylvauia 
Nav.  Co.  V.  Dandridixe.  8 "Gill,  ct  John.,  248:  South  Yorkshire  Co.  v.  Great 
Northern  R.  R.  Co.,  9"Exch.,  55.  84:  Mayor  of  Norwich  v.  Norwich  and  Nor- 
folk R.  R.  Co.,  4  Ell.  &  Bl.,  397. 


234        FllY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

into  it.  Corporations  have  by  law  a  power  to  enter  into  all 
contracts  not  expressly  or  impliedly  prohibited  ;(a)  and, 
therefore,  all  corporate  bodies  are  prima  facie  bound  by 
contracts  under  their  corporate  seals;  "but  this  _pnma 
facie  riii:ht,"  said  Lord  Cran worth,  "  does  not  exist  in  any 
case  where  the  contract  is  one  which,  from  the  nature  and 
object  of  incorporation,  the  corporate  body  is  expressly  or 
impliedly  prohibited  from  making."  (5)  ' '  Where  a  corpora- 
tion," said  Lord  Wensleydale,(c)  "is  created  by  an  act  of 
parliament  for  particular  purposes,  with  special  powers, 
their  deed,  though  under  their  corporate  seal,  and  that 
regularly  affixed,  does  not  bind  them,  if  it  appears  by  the 
express  iDrovisions  of  the  statute  creating  the  corporation, 
or  by  necessary  or  reasonable  inference  from  its  enactments, 
that  the  deed  is  ultra  mres ;  that  is,  that  the  legislature 
meant  that  such  a  deed  should  not  be  made." 

§  468.  This  doctrine  was  very  fully  discussed  in  a  case 
to  which  it  is  proposed  now  briefly  to  advert.  In  the  case 
of  The  Shrewsbury  and  Birmingham  Kail  way  Co.  v.  The 
London  and  North- Western  Eailway  Co.,(«^)  the  contract 
between  the  companies  was  briefly  to  the  effect  that  the 
:N'orth-Western  Company  should  give  up  to  the  Shrewsbury 
Company  seven-thirteenths  of  the  profits  of  the  carriage  of 
passengers  and  goods  over  a  part  of  the  North- Western 
line,  in  consideration  of  receiving,  in  return,  six-thirteenths 
of  the  profits  made  by  the  Shrewsbury  Company  on  a  certain 
portion  of  tlieir  line.  In  the  course  of  the  protracted  liti- 
gation which  arose  out  of  this  contract,  opposing  opinions 
were  given  by  the  highest  authorities  as  to  whether  it  was 
ultra  tyires  or  not.  Lord  Cottenham  and  the  Queen's  Bench 
inclining  to  the  opinion  of  its  validity,  and  Turner,  L.  J., 
and  Lord  Cranworth  sitting  in  the  House  of  Lords  leaning 
strongly  to  the  opinion  that  it  was  in  excess  of  the  powers 
of  the  companies.  If  such  a  contract  was  valid  as  to  part  of 
the  line^  why  should  it  not  be  valid  as  to  the  whole  ?  and  if 

(o)  Per  Erie,  J.,  in  Mayor  of  Norwich  v.  324;  before  Lord  Truro,  3  id.,  70;  before  Q. 

Norfolk  Railway  Co.,  4  El.  &  Bl.,  397,  413.  B.,  17  Q.  B.,652;  before  Lord  Roiiiilly,M.  R., 

(6)  In  Directors,  etc.,  of  The  Shrewsbury  16  Beav.,  441;  before  the  Court  of  Appeal  In 

and  Birmingham  Railway  Co.  v.  Directors,  Chancery, 4  De  G.  M.  &  G.,  115;  and  In  D.  P  , 

etc.,  of  The  North- Western  Railway  Co.,  6  H.  6  H.  L.  C,  113;  and  see  Lancaster  and  Carl- 

L  C,  13.>-C.  isle  Railway  Co.  v.  North-Western  Railway 

(c)  In  South  Yorkshire  Railway  and  River  Co.,  2  K.   &  J.,  293;  Hare  v.  London  and 

Dun  Co.  V.  Great  Northern  Railway  Co.,  9  North-Western  Railway  Co.,  2  J.  &  H.,  80; 

Exch.,  84:  accordingly  Batenian  v.  Mayor,  Midland  Railway  Co.  v.  Great  Western  Rall- 

«tc.,  of  Abhton  under  Lyne,  3  II.  &  N.,  323.  way  Co.,  21  W.  R  ,  657. 

{d)  Before  Lord  Cottenham,  2  Mac.  &  G  , 


CONTRACT   BEING   ULTRA   VIRES.  235 

SO,  there  would  be  no  impediment,  it  was  urged,  to  two 
companies  bringing  their  funds  into  a  common  stock,  and 
dividing  them  amongst  their  shareholders  in  any  stii^ulated 
proportion. 

§  469.  It  would  be  foreign  to  the  objects  of  this  treatise 
to  discuss  the  very  numerous  cases  which  ha\re  arisen  on 
this  doctrine  of  ultra  tires ^  involving,  as  they  almost  always 
do,  a  careful  consideration  of  the  statutes  in  force  with  re- 
gard to  the  class  of  corporations  in  question,  the  charter  or 
act  of  parliament  or  memorandum  of  association  of  tlie 
particular  corporation  and  the  contract  in  question  in  each 
case.((e) 

§  470.  The  question  of  ultra  vires  as  applicable  to  cor- 
porations must  be  carefully  distinguished  from  the  question 
of  ultra  tires  as  applicable  to  the  agents  or  officers  of  those 
bodies.  An  act  which  is  beyond  the  powers  of  the  corpora- 
tion can  never  be  good  and  can  never  be  made  good  by 
ratification  or  acquiescence  or  in  any  way  short  of  act  of 
parliament.  (/)  On  the  other  hand,  an  act  which  is  within 
the  powers  of  the  body,  but  beyond  the  powers  of  the  board 
of  directors  or  other  managers,  may,  and  often  does,  become 
binding  on  the  corporation  by  its  ratification  or  acquies- 
cence ;  and  so,  again,  acts  which  are  beyond  tlie  powers  of 
the  managers,  except  on  the  observance  of  certain  condi- 
tions, may,  if  within  the  powers  of  the  body  corporate,  be 
held  good  by  a  judicial  inference  from  the  conduct  of  the 
corporation  that  the  conditions  have  been  observed.  The 
first  class  of  acts  are  void  from  the  nature  of  the  corpora- 
tion ;  the  second  are  objected  to  as  having  been  beyond  the 
scox)e  of  the  agenf  s  authority." 

(«)  See  Brlce's  Doctrine  of  Ultra  Vires.  (/)  See  Ashbury  Railway  Carriage  and  Iron  Co. 
V.  Rlche,  L.  K.  7  H.  L.,  653. 


1  Distinction  between  corporatiom  and  individuals.']  The  former  can  exercise 
no  powers  which  are  not  conferred  by  their  charters,  while  the  hitter  may 
make  any  contract  which  the  law  sanctions.  Head  v.  Providence  Ins.  Co..  2 
Crauch,  127;  Bank  of  N.  S.  v.  Danbrid?e,  12  Wheat.,  G4:  Ilannable  and  St. 
Joseph  R.  K.  Co.  v.  Marion,  36  Mo.,  2'J4;  Mathews  v.  Spinner,  02  id.,  329; 
National  Bank  v.  Taylor,  56  Pa.  St.,  15. 

Scope  of  corporations.]  The  charter  of  a  corporation,  with  reference  to  its 
powers  and  capacities,  must,  like  anv  other  statute,  be  construed  as  an  entirety. 
White's  Bank  v.  Toledo  Ins.  Co.,  12  Ohio  St.,  601;  Toledo  v.  North  American 
Coal  Co.,  '6  Head  (Tenn.),  837.  The  general  purpose  for  which  the  corporation 
was  formed  must  be  considered,  and  such  reasonable  construction  be  given  to 
the  terms  employed,  as  will  tend  to  bring  about  such  purpose.  Vandall  v. 
South  San  Francisco  Dock  Co.,  40  Cal.,  83.     A  corporation  possesses  all  such 


236        FltY  ox  SPECIFIC  TEKFOKMANCE  OF  CONTRACTS. 

§  47 1 .  Hence  it  must  not  be  assumed  tliat  the  question 
of  nUra  v/'rcs  is  in  all  respects  the  same  when  it  arises  be- 
tween the  members  of  a  company  and  its  directors,  and 
when  it  arises  between  the  company  and  a  third  person. 

powers  as  are  necessarily  incident  to  those  specifically  granted,  or  are  essential 
to  the  purposes  and  objects  for  which  the  corporation  was  organized.  It  is  not 
limited  to  the  powers  specifically  granied.  Bank  of  Augusta  v.  Earl,  13  Pet., 
519;  Whitman  Minim,'  Co.  v.  Baker,  3  Nev.,  386;  Coleman  v.  Eastern  Counties 
R.  U.  Co.,  10  Beav.,l7;  Ketchum  v.  City  of  Buffalo,  14  N.  Y.,  356;  Le  Cou- 
teulx  V.  City  of  Buffalo,  33  id.,  333;  Shammut  Bank  v.  Plattsburgh  R.  R.  Co., 
81  Vt.,  491. 

Municipal  corporntiorif:.]  Such  corporations  are  held  more  strictly  to  their 
charters  than  others.  Parties  dealing  with  them  are  bound  to  know  their 
powers  at  their  peril.  City  of  Leavenworth  v.  Rankin,  2  Kan.,  357;  Thomas 
V.  City  of  Richmond,  13  'SVall.,  349. 

Different  securiiy  from  that  prescribed.^  The  charter  of  a  corporation  pre- 
scribed what  species  of  security  should  be  taken  of  its  officers.  Held,  that  if 
a  different  sort  was  taken,  it  could  be  enforced  against  the  party  who  gave  it. 
Bank  of  South  Carolina  v.  Hammond,  1  Rich.,  281 ;  Mott  v.  United  States 
Trust  Co.,  19  Barb.,  568;  United  States  Trust  Co.  v.  Brady,  20  id.,  119;  Little- 
wort  v.  Davis,  50  Miss.,  403;  see,  however,  Spendon  v.  Mayor,  etc.,  of  New 
York,  7  Bosw.,  601 ;  S.  C,  21  How.  Pr.,  395. 

Corporation  may  waive  its  rights.]  In  a  case  where  the  provisions  of  a  cor- 
poration's charter  were  designed  to  protect  it,  it  was  held  that  such  provisions 
might  be  waived,  and  that  such  waiver  might  be  shown  by  a  repetition  of  acts 
of  a  like  or  similar  character.  Hood  v.  N.^Y.  and  N.  H.  R.  R.  Co.,  22  Conn., 
503. 

Legality  of  corporate  act  presumed.]  "The  dealings  of  a  corporation  which 
on  their  face,  or  according  to  their  apparent  import,  are  within  its  charter,  are 
not  to  be  regarded  as  illegal  or  unauthorized,  without  some  evidence  tending 
to  show  that  they  are  of  such  a  character.  In  the  absence  of  proof,  there  is 
no  legal  presumption  that  the  law  has  been  violated.  On  the  contrary,  these 
artificial  bodies,  like  natural  persons,  are  entitled  to  the  benefit  of  the  rule 
which  imputes  innocence,  rather  than  wrong,  to  the  conduct  of  men.  A  differ- 
ent doctrine  would  require  a  corporation,  even  in  many  of  its  ordinary  transac- 
tions, to  show  that  it  had  not  transcended  the  limits  of  its  charter."  Chautauqua 
County  Bank  v.  Risley,  19  N.  Y.,  369;  Farmers'  Loan  and  Trust  Co.  v.  Clowes, 
3  id.,  470;  De  Graff  v.  American,  etc.,  Co.,  21  id.,  124;  Yates  v.  De  Bogert, 
56  id.,  526;  Farmers'  Loan  and  Trust  Co.  v.  Perry,  3  Sandf.  Ch.,  339;  Peru 
Iron  Co.,  ex  parte,  7  Cow.,  540;  Safford  v.  Wyckoff,  4  Hill,  442;  Morris  and 
Essex  R.  R.  Co.  v.  Sussex  R.  R.  Co.,  20  N.  J.  Eq.,  542;  Charleston  Turnpike 
Co.  V.  Willey,  16  Ind.,  34;  Dana  v.  Bank  of  St.  Paul,  4  Minn.,  385;  Mitchell  v. 
Rome  R.  R.  Co.,  17  Ga.,  574;  Oxford  Iron  Co.  v.  Spradley,  46  Ala.,  98. 

Definition  of  incidental  pover.]  "An  incidental  power  is  one  which  is  directly 
and  immediately  appropriate  to  the  execution  of  the  power  granted,  and  not 
one  which  has  a  slight  or  remote  relation  to  it."  Hood  v.  New  York  and  New 
Haven  R.  R.  Co.,  22  Conn.,  1;  People  v.  Utica  Ins.  Co.,  15  John  ,  358;  New 
York  Firemen's  Ins.  Co.  v.  Sturges,  3  Cow.,  664;  Same  v.  Ely,  id.,  678; 
Broughton  v.  Manchester  Water  AVorks,  3  Barn.  i.\;Ald.,  9;  People  v.  Trus- 
tees of  Geneva  College,  5  Wend.,  317;  Trustees  v.  Pcasley,  15  N.  H.,  317; 
Downing  v.  Mt.  Washington  R.  R.  Co.,  40  id.,  2X0;  Fuller  v.  Trustees  of  Plain- 
field  School,  6  Conn.,  532;  Commonwealth  v.  Erie  R.  R.  Co.,  27  Pa.  St.,  339; 
Dartmouth  Colletre  v.  Woodward,  4  Wheat.,  518;  Pacific  R.  R.  Co.  v.  Sealy, 
45  Mo.,  212;  Town  of  Petersburgh  v.  Metzker,  21  111.,  2U5;  see,  however.  Hart 
V.  Rensselaer  and  Saratoga  R.  R.  Co.,  8  N.  Y.,  37;  Quimby  v.  Yauderbilt,  17 
id.,  306;  Bissell  v.  Michigan  Southern  R.  R.  Co.,  22  id.,  258;  Buffet  v.  Troy 
and  Boston  R.  R.  Co.,  40  id.,  168.  Unless  the  powers  claimed  to  be  implied 
are  immediately  and  directly  appropriated  to  the  execution  of  the  specific 
powers,  and  the  same  are  a  careful  and  necessary  means  to  give  them  effect. 


CONTRACT   BEING   ULTRA   VIKKS.  237 

§  473.  Some  contracts  are  of  such  a  nature  that  every 
one  must  know  them  to  be  beyond  tlie  powers  of  the  cor- 
poration with  wliich  he  is  dealing,  as  e.  r/.,  a  contract  by  a 
railway  company  to  buj'  a  thousand  gross  of  green  specta- 

such  implied  powers  will  not  be  held  to  be  within  the  scope  of  the  cliarter. 
Curtiss  V.  Leavitt,  13  N.  Y.,  157,  158. 

Unauthorized  act  by  corporation. '\  Such  an  act  is  void,  and  cannot  be  en- 
forced eitlier  at  law  or  equity.  Mutual  Life  and  Fire  Ins.  Co.  v.  McKelway,  1 
Beasley's  Ch.,  183;  Pennsylvania  Co.  v.  Danbridge,  8  Gill.  &  John.,  248;  Pearce 
V.  Madison  R.  R.  Co.,  21  How.,  441;  Haynes  v.  Corringtou,  13  Sm.  A:  Marsh., 
411 ;  Little  V.  O'Brien,  9  Mass.,  423;  Commercial  Bank  v.  Nolan,  7  How.  (.Mi.ss.), 
508;  Littlewort  v.  Davis,  50  Miss.,  403;  Matter  of  Brooklvn  R.  R.  Co.,  72  N.Y., 
245;  Bank  of  Michigan  v.  Niles,  1  Doug.,  401;  all'g  S.'C,  I  Walker  (Mich.), 
99;  Brown  v.  Winnismap  Co.,  11  Allen,  326. 

Corporate  acts  impliedly  proMbited.'\  Any  intentional  use  by  a  corporation  of 
any  of  its  powers,  with  the  intention  of  defeating  the  objects  for  which  it  was 
created,  will  be  prohibited  \>y  implication.  East  Anglican  R.  R.  Co.  v.  East- 
ern Counties  R.  R.  Co.,  11  C.  B.,  775;  S.  C,  7  Rail.  Cas ,  150:  McGregor  v. 
Dover  and  Deal  R.  R.  Co.,  18  Q.  B..  G18;  S.  C,  7  Rail.  Cas.,  227;  Gage  v. 
Newmarket  R.  R.  Co.,  18  Q.  B.,  457;  Eastern  Counties  R.  R.  Co.  v.  Hawkes, 
5  House  of  Lds.,  347;  South  Yorkshire  R.  R.  Co.  v.  Great  Northern  R.  R. 
Co.,  9  Ex.,  55,  G43;  Patchin  v.  Doolittle,  3  Vt.,  457;  Common  v.  Inliabitants 
of  Cambridge,  7  Mass.,  158;  Parks  v.  Boston,  8  Pick.,  218;  Dudley  v.  Cilley, 
5  N.  BT.,  55s ;  Goodwin  v.  Milton,  id.,  458;  Third  Turnpike  Co.  v.  Champnav, 
2  id.,  199;  Knowle's  Petition,  32  id.,  361;  Dudley  v.  Butler,  10  id.,  281 ;  Guern- 
sey v.  Edwards,  26  id,  224;  Springfield  v.  Harris,  107  Mass.,  532;  Townsend 
V.  Hoyle,  20  Conn.,  1. 

Private  party  contracting  with  corporation.']  A  contract  may  be  ziltra  fires 
with  respect  to  the  officers  or  stockholders  of  a  corporation,  and  not  so  in  rela- 
tion to  a  private  party.  Mount  v.  Shrewsbury  R.  R.  Co.,  13  Beav..  1;  Cohen 
V.  Wilkinson,  5  Rail."Cas.,  741;  Beaman  v.  Raffard,  7  id.,  48,  75;  Simpson  v. 
Dennison,  10  Hare,  51.  To  effect  a  private  party,  he  must  have  known,  at  the 
time  of  entering  into  the  agreement,  that  it  was  intended  for  a  purpose  foreign 
to  the  incorporation  of  the  company.  Osipee  Mauuf'g  Co.  v.  Canuey,  54 
N.  H.,  295. 

Act  entirely  complete  on  jylaintiff'a  part]  It  is  a  well-settled  rule  that  the  de- 
fense of  ultra  vires  cannot  be  pleaded  by  a  corporation,  in  a  case  where  the  con- 
tract has  been  fully  postponed,  and  the  corporation  has  had  the  advantage  of 
the  performance.  Parish  v.  Wheeler,  22  N.  Y.,  494;  Silver  Lake  Bank  v. 
North,  4  Johns.  Ch.,  370;  Palmer  v.  Lawrence,  3  Saudf..  161;  State  of  lud. 
V.  Woram,  6  Hill,  37;  Chester  Glass  Co.  v.  Dewev,  10  Mass.,  94;  Steamboat 
Co.  V.  McCutchen,  13  Pa.  St..  13;  Steam  Nav.  Co.  v.  Weed,  17  Barb..  378; 
Whitney  Arms  Co.  v.  Barlow,  63  N.  Y.,  62;  Chippendale,  ex  parte.  4  De  G. 
M.  &  G.,  19;  In  re  National  Soc,  L.  R..  5  Cli.,  309;  In  re  Corle.  etc,  R.  C,  4 
id.,  748;  Fishmongers  Co.  v.  Robertson.  5  Mc.  &  G.,  131;  Allegheny  City  v. 
McChu-kson,  14  Pa.  St.,  81;  Bradley  v.  Ballard,  55  III.  413;  Rock  River  Bank 
V.  Sherwood,  10  Wis.,  230;  Farmers'  Bank  v.  Detroit  R.  R.  Co.,  27  Wis..  372. 

Repayment  can  he  compelled.']  Where  a  contract  made  with  a  corponition  is 
void,  and  for  that  reason  the  party  cannot  maintain  an  action  \ipon  it.  he  may 
recover  what  has  been  paid,  when"  the  parties  arc  not  in  pari  delicto.  Robinson 
V.  Bland,  3  Burr.,  1077;  Howsou  v.  Hancock,  8  Term.  R.,  577;  Utica  Ins.  Co. 
V.  Scott,  19  .Tohn.,  1;  Same  v.  Cadwell,  3  Wend.,  296;  Same  v.  Bloodgood.  4 
id.,  652;  Little  v.  O'Brien.  9  .Mass..  423;  Episcopal  Soc.  v.  Episcopal  Church, 
1  Pick.,  372;  White  v.  Franklin  Bank,  22  id.,  181:  Rich  v.  Errol,  51  N.  H., 
361;  Whitney  v.  Peay,  24  Ark.,  22.  Where  money  has  been  paid  in  advance 
to  a  corporation,  upon  a  contract  Avhich  is  vltra  jv/rs— Held,  that  the  party  so 
paying  might  recover  the  same,  and  that  he  need  make  no  previous  demand. 
Dill  V.  W^ireham,  7  ]\Ietc.,  438. 

Surrender  of  possession  before  action  brought.]  "The  cases  in  which  posses- 
sion must  be  surrendered  before  an  action  for  the  purchase  money  can  be 


238        FRY  ox  SPECIFIC  PERFORIMANCE  OF  CONTRACTS. 

cles,  or  a  contract  by  a  company  formed  to  make  a  railway 
from  A.  to  B.  for  the  construction  of  a  railway  from  C.  to  D. 
Such  contracts  as  these  are  equally  void,  whether  the  ques- 
tion arise  between  tlie  company  and  a  stranger  or  between 
members  of  the  corporation.  But  the  case  is  quite  different 
as  regards  many  other  contracts  which  may  or  may  not  be 
really  entered  into  for  the  purposes  of  the  company.  Direc- 
tors nright  buy  iron  rails  not  really  for  the  purposes  of  the 
line  but  for  speculation.  This  contract  would  be  void  as 
against  the  shareholders,  but  might  be  perfectly  good  in 
favor  of  the  vendor  to  the  company.  In  short,  the  mere 
fact  that  a  contract  by  the  directors  is  ultra  mres,  as  be- 
tween them  and  the  shareholders,  does  not  necessarily  dis- 
entitle the  other  party  to  the  contract  from  suing  upon  it. 
To  do  so,  it  is  further  necessary  that  the  party  suing  should 
have  known  at  the  time  of  the  contract  that  it  w^as  intended 
for  a  purpose  unconnected  with  the  incorporation  of  the 
company.  The  nature  of  the  contract  will  show  this  in 
some  cases  :  in  others  it  will  i\ot.{g) 

§  473.  From  this  principle  it  follows  that,  where  a  public 
company  is  authorized  to  take  land  for  extraordinary  pur- 
poses, a  person  who  agrees  to  sell  his  land  to  this  company 
is  not  bound  to  see  that  it  is  strictly  required  for  such  pur- 
poses ;  but  if  he  acts  bona  fide  and  without  knowledge  that, 
the  land  is  not  so  required,  or  that  the  transaction  is  any 
misapplication  of  the  funds  of  the  company,  the  contract 
is  binding  in  his  favor,  and  may  be  enforced  by  him  in 
equity  \{h)  and  the  same  holds  goods  where  the  company, 
really  requiring  part  of  an  estate,  purchase  more  than  is 
required,  (z)' 

ig)  Per  Lord  Campbell,  C.  J.,  ami  Erie,  J.,  Green  v.  Nixon,  23  Beav.,  530;  Royal  British 

in  Mayor  of  Norwich  v.  Norfolk  lialhvay  Co  ,  Bank  v.  Turquand,  5  El.  &  Bl.,  248;  6  id.,  327. 

4  El.  &  Bl  ,  397.  415,  443 ;  per  Lords  Campboll  {h)  Eastern  Counties  R'way  Co.  V.  Hawkes, 

and  St.  Leonards  in  Eastern  Counties  Rail-  5  H.  L.  C,  331,  349,  355. 

way  Co.  V.  Uawkes,  5  U.  L.  C.  338,  .355,  372;  (i)  S.  C. 
Re  Contract  Corporation,  L.  R    8  Eq  ,   14; 

brought,  are  those  where  a  contract  has  been  made,  and  possession  has  been 
taken  thereunder,  and  the  vendee  seeks  to  rescind  the  contract  on  the  ground 
of  defective  title,  or  tlie  inability  of  the  vendor  to  perform  the  contract  on  his 
part,  or  of  some  fraudulent  representations  inducing  its  execution.  In  these 
cases  the  vendee  must  offer  to  restore  whatever  he  has  received  before  he  can 
call  upon  the  vendor  to  refund  the  purchase  money.  Where  the  contract  is  void, 
there  is  nothing  to  rescind ;  no  rights  are  acquired,  and  there  are,  in  consequence, 
no  rights  to  restore."    McCracken  v.  City  of  San  Francisco,  16  Cal.,  591. 

*  In  the  case  of  the  Southern  Life  Insurance  and  Trust  Co.  v.  Lanier,  5  Fla., 
110,  a  contract  with  a  corporation  was  held  to  be  binding  on  the  parties, 
although  it  was  an  abuse  of  the  corporate  powers,  for  which  the  corporation 
was  answerable  to  the  government  who  created  it. 


CONTRACT  BEING   ULTRA   VIRES.  239 

§  474.  Fnrtliermore,  a  contract  will  not  be  void  as  against 
a  third  person  dealing  hona  fide  with  the  corporation,  be- 
cause there  may  have  been  the  omission  to  observe  some 
fonnality  required  by  the  terms  of  its  constitution,  or  be- 
cause there  may  have  been  some  irregularity  on  the  part  of 
the  directors  or  officers  of  the  body  entering  into  it  on  their 
behalf.  Thus,  for  instance,  it  has  been  held  to  be  no  defense 
to  an  action  against  a  company  upon  a  debenture  sealed 
with  their  common  seal  that  the  borrowing  of  the  money 
thereby  secured  was  not  sanctioned  by  the  resolution  of  an 
extraordinary  general  meeting  as  required  by  its  deed  of 
settlement,  (y)' 

(j)  Royal  British  Bank  v.  Turquand,  5  El.  Case,  1  De  G.  J.  &  S.,  4S8;  Prince  of  Wales 
&  Bl.,248;  G  id.,  327;  Agar  v.  Athenreutn  Life  Assurance  Co.  v.  Harding,  El.  B.  &  E.,  183. 
Assurance  Society,  3  C.  B.  N.  S.,  725;  Grady's 


1  The  case  of  Kean  v.  Johnson,  1  Stockt.  (N.  J.),  proceeds  upon  this  same 
principle.  There,  an  incorporated  company  were  engaged  in  a  prosperous  un- 
dertaking. The  majority  of  stockholders  and  board  of  directors  wished  to  sell 
out,  and  invest  the  capital  in  other  enterprises,  and  the  minority  came  for 
relief  to  the  court  of  chaucgry.  It  was  held,  that  in  cases  of  joint-stock  com- 
panies there  was  a  contra^st  between  all  the  stockholders  and  the  board  of 
directors,  that  the  joint  funds  should  be  used  for  certain  specified  purposes,  and 
that  any  material  deviation  was  a  breach  of  this  contract  which  would  not  be 
permitted. 


240        FRY  ON  SPECIFIC  PEHFOKMAXCE  OF  CONTRACTS. 


CHAPTER  XI. 

OK   THE   STATUTE   OF   FRAUDS   AND   THEREIN   OF   PART 
PERFORMANCE. 

§  475.  By  the  fourth  section  of  the  Statute  of  Frauds  {a) 
it  is,  amongst  other  things,  enacted  that  no  action  shall  be 
brought  whereby  to  charge  any  person  upon  any  contract 
or  sale  of  lands,  tenements,  or  hereditaments,  or  any  interest 
in  or  concerning  them,  "unless  the  agreement  upon  which 
such  action  shall  be  brought,  or  some  memorandum  or  note 
thereof,  shall  be  in  writing  and  signed  by  the  party  to  be 
charged  therewith,  or  some  other  person  thereunto  by  him 
lawfully  authorized." 

§  476.  This  section  affects  not  the  contract  itself,  but  the 
right  of  either  party  to  sue  the  other  upon  it.  Hence  it  has 
been  decided  that  it  refers  not  to  the  solemnities  of  the  con- 
tract, but  to  the  x-)rocedure,  and  consequently  that  an  action 
will  not  lie  in  this  country  on  a  contract  made  in  a  foreign 
country,  and  valid  there,  which,  if  made  here,  would  have 
been  incapable  of  being  sued  on  by  reason  of  this  section.  (&) 
This  decision,  though  still  law,  has  not  escaped  criticism,  (c) 
and  is  difficult  to  reconcile  with  the  well  settled  rule(fZ) 
which  requires  that  the  writing  relied  on  as  taking  a  case 
out  of  the  statute  should  be  in  existence  before  action 
brought ;  a  requirement  which  would  be  unreasonable  and 
contrary  to  the  usual  practice,  if  it  related  only  to  procedure 
and  did  not  go  to  the  solemnities  of  the  contract. 

§  477.  It  is  obvious  that  in  many  cases  a  defense  to  an 
action  for  specific  performance  may  be  grounded  upon  this 
fourth  section  of  the  Statute  of  Frauds.  It  is,  therefore, 
proposed  to  consider  (1)  how  such  a  defense  may  be  raised, 
and  (2)  what  constitutes  a  sufficient  agreement  or  memo- 

(a)  29  Car.  II,  c  3  the  fourth  section  is  matter  of  procedure  in 

(6)  l.eroux  v.  Brown,  12  C.  B.,  801.  the  judgment  of  the  Queen's  Bench  Division 

(c)  Williams  v.  Wheeler,  8  C.  B  X.  S.,  299,  In  Jones  v.  Victoria  Graving  Dock  Co.,  2  Q. 

316;  Gibson  V.Holland,  L.  R.IC.  P.,  8.  The  B.  D.,  323. 

case  is,  however,  cited  as  an  autliority  for  the  (d)  Bill  v.  Bament,  9  M.  &  W.,  36. 

proposition  that  the  signature  required  by 


STATUTE   OF   FRAUDS,  ETC.  241 

randum  or  note  of  agreement  within  the  meaning  of  the 
statute.  And  as,  notwithstanding  the  express  language  of 
the  statute,  it  was  held  by  the  court  of  chancery,  and  is  now 
the  law  of  the  land,  that  certain  circumstances  may  preclude 
a  defense  founded  upon  the  statute,  it  is  necessary  to  con- 
sider a  third  question,  namely,  (3)  what,  according  to  the 
principles  of  equity,  takes  a  contract  out  of  the  statute.' 

1.  How  the  defense  may  he  raised.'' 

§  478.  In  order  to  make  intelligible  the  decisions  on  the 
present  mode  of  pleading,  it  will  be  necessary  to  state  briefly 


'  StaUs  in  wliicJi  the  contract  is  void,  if  not  in  conformity  loiih  the  statute]  The 
English  statute  (Mercantile  Law  Amendment  Act,  19  and  20  Vie,  185(5)  has 
been  in  substance  re-enacted  in  many  of  the  States.  In  the  following  tlic  con- 
tract is  void,  if  not  in  conformity  with  the  provisions  of  the  statute  :  Alabama 
Code,  1867,  §  1862;  California  Code,  §  1741;  Michigan  Comp.  Laws,  1871,  vol. 
11,  p.  1455,  ch.  166,  §  8;  Minnesota  Stats.,  1873,  vol.  1,  p.  692,  §  12;  Nebraska 
Stats.,  1873,  p.  392,  ch.  25,  §  5;  New  York  Rev.  Stats.  (6th  ed.),  vol.  3,  p.  141; 
Oregon  Gen.  Laws,  1872,  ch.  8,  §  775;  Wisconsin  Stats.,  1871,  vol.  11,  ch. 
106,  §  8. 

' '  T7ie  statute  is  not  a  mere  rule  of  evidence,  but  a  limitation  of  judicial  authority 
to  afford  a  remedy.  It  requires  that  contracts  for  the  sale  of  lands,  in  order  to 
be  enforced  by  judicial  proceedings,  must  be  substantiated  by  some  wrUing. 
This  provision  of  law  cannot  be  dispensed  with,  merely  for  the  reason  that  the 
want  of  such  writing  was  occasioned  by  mistake,  accident  or  fraudulent  rep- 
resentations, unless  some  other  ingredient  enters  into  the  case  to  give  rise  to 
•equities  stronger  than  those  which  stand  upon  the  oral  contract  alone,  which 
estop  the  other  party  from  setting  up  the  statute."  Wells,  J.,  in  Glass  v.  Hul- 
bert,  102  Mass.,  25;  Stockbridge  Iron  Co.  v.  Hudson  Iron  Co.,  id.,  45. 

Assignee's  contract  to  pay  original  purchase  money.  \  The  assignee  of  a  bond 
for  title,  entered  into  a  contract  to  pay  the  purchase  money  to  the  original 
vendor.  Held,  that  it  was  not  a  parol  promise  to  pay  the  debt  of  another,  nor 
a  parol  contract  for  the  sale  of  land,  and  that  it  would  be  specifically  enforced. 
Ford  v.  Finney,  85  Ga.,  258. 

Securities.']  "The  words  of  the  statute  have  never  yet  been  extended  bv 
any  court  beyond  securities  which  are  subjects  of  common  sale  and  barter,  and 
which  have  a  visible  and  palpable  form."  Somerly  v.  Buntin,  118  Mass.,  >.9, 
per  cur.  Gray,  C.  J. 

Examples  of  promise  within  the  statute.]  A  judgment  to  sell  a  stock  of  goods, 
and,  as  a  part  of  the  transaction,  the  seller  verbally  agreed  to  give  the  purchaser 
a  three  years  lease  of  the  store— Held,  within  the  statute,  and  the  action  dis- 
missed. Strahl  V.  Evers,  66  111.,  77;  Schulter  v.  Bockwinkle,  19  ^^lo^  6-4; 
William  and  Mary's  Col.  v.  Powell,  12  Gratl.,  372;  Bryant  v.  Jamison,  ,  Mo., 
106. 

«  In  order  that  a  bill  may  be  taken  advantage  of  under  these  circumstances 
it  must  not  only  show  the  want  of  an  agreement  conformable  to  the  statute  of 
frauds,  but  it  must  also  omit  to  make  any  allegations  of  part  performance. 
Thus,  in  the  case  of  Field  v.  Hutchinson,  1  Beav.,  599;  S.  C,  3  Jur..  <.».)  it  is 
said,  "where  the  want  of  a  signature  to  an  agreement  for  the  sale  of  lands 
cleariy  appears  on  the  bill,  the  objection  may  be  taken  advantage  ot  by  general 
demurrer;  but  the  statements  of  this  bill  not  beiu-  inconsistent  with  a  signa- 
ture by  the  party  to  be  charged,  and  containing  allegations  of  part  perform- 
ance, a  general  demurrer  thereto  was  overruled." 

16 


242        FllY  ox  SPECIFIC  PEKFOKMANCE  OF  CO^•TRACTS. 

what  was  the  nietliod  of  taking  advantage  of  the  statute  be- 
fore the  judicature  acts. 

§  479.  Under  the  old  practice,  then,  the  want  of  a  con- 
tract within  the  statute  might,  when  clearly  appearing 
on  the  bill,  have  been  taken  advantage  of  by  general  de- 
niurrrer,((?)  or  by  a  demurrer  alleging  the  want  of  such  a 
contract. (/)  In  this  respect,  there  was  held  to  be  a  wide 
difference  between  the  Statute  of  Frauds  and  the  statute  of 
limitations.  (.(7) 

§  4S0.  The  benefit  of  the  statute  might  also  have  been 
had  by  i^lea  ;  and,  notwithstanding  a  doubt  of  Lord  Mac- 
clesfied,(70  by  plea  alone  and  without  answer. 

§481.  To  a  bill  alleging  a  parol  contract  and  part  per- 
formance, a  plea  averring  that  there  was  no  contract  in 
writing,  and  an  answer  insisting  that  the  alleged  acts  did 
not  amount  to  part  performance,  was  a  sufficient  defense. (/) 
Though  such  a  bill  could  not,  it  seems,  have  been  met  by  a 
plea  alone,  for  a  plea  in  bar  to  such  a  bill  w^ould  contain 
two  distinct  points— namely,  the  denial  of  the  written  con- 
tract and  of  the  acts  of  part  performance,  and  w^ould  there- 
fore have  been  multifarious  and  bad.(y)' 

§  482.  The  benefit  of  the  statute  might  also  have  been 
obtained  by  the  defendant's  answer;  and  either  by  an 
answer  denying  or  not  admitting  the  contract  (which  was 
sufficient,  without  special  reference  to  the  statute,  to  throw 
upon  the  plaintiff  the  whole  burthen  of  proving  a  valid 

(e)  Field  v.  Hutchinson,  1  Beav.,  599;  cf.  9  Mod.,  86;  Moore  v.  Edwards,  4  Ves.,  23; 

Heard  v  Pllley,  L  R.  4  Ch.,  548.  Bowers  v.  Oator,  id.,  91;  Evans  v.  Harris,  2 

(/)  Wood  v.Midgley,  5  1)6  G.M.&G.,  41;  V.  &  B.,  361. 

S  C  ,2  Sm.  &Gir.,  115;  Barkworth  v.  Young,  (j)  Whltbread  v.  Brockhurst,  1  Bro.  C.  C, 

4 brew  1.    See,  also,  Howard  v.  Okeover,  3  404;  and  see  Belt's  n.  and  Redes.  Plead.,  268. 

Sw    421  n  ''ee,  also,  as  to  this  plea,  Child  v.  Comber,  3 

((7)  Per  Lord  Cranworth    In    Ridgway   v.  Sw.,  423  n. ;   for  a  plea  to  a  parol  contract 

Wnarton,  3  l>e  G.  M.  &  G  ,  691 ;  Ut-ysv.  Ast-  varying  a  written  one,  Jordan  v.  Sawkins,  3 

ley  4  De  G  J  &  S.,  34.  Bro   C.  C,  388;  and  I'oi  a  plea  alleging  revo- 

(h)  Child  V.  Godolphin,  1  Dick  ,  39.  cation  of   agency.  Mason   v.   Armitage,  13 

(i)  Whitchurch  v    Bevis,  2  Bro.  G.  C  559;  Ves.,  25. 
S.  C.,2  Dick., 664.    See,  also,  Hosier  v.  Read, 

1  The  case  of  French  v.  Shotwell,  5  John.  Ch.,  555.  is  a  somewhat  analogous 
case.  There,  to  a  bill  for  relief  against  a  judgment,  on  the  ground  of  fraud,  a 
plea  of  the  judgment,  and  an  answer  denying  the  fraud,  were  held  good.  A 
plea  must  contain  a  denial  of  all  the  facts  charged  in  the  bill  which  would,  if 
true,  defeat  the  plea;  and  it  must  reduce  the  defense  to  a  single  point.  Bogar- 
dus  V.  Trinity  Church,  4  Paige,  178:  Saltus  v.  Tobias,  7  John.  Ch.,  214.  If  a 
plea  be  double,  the  plaintifl'may  demur  for  duplicity;  but,  if  he  reply,  he  must 
answer  both  parts  of  the  plea.     Barrett  v.  Ruill,  3  Ired.,  881. 


STATUTE   OF   FKAUDS,  ETC.  243 

contract  capable  of  being  enforced), (/i)  or  by  an  answer  ad- 
mittino-  a  contract,  and  expressly  pleading  tlie  statute. (/) 

§483.  If  the  benefit  of  the  st:itute  was  not  claimed  in 
one  or  other  of  these  ways,  it  could  not  be  had  at  the  hear- 
ing. (;m) 

§  484.  A  great  change  has  been  effected  by  the  provisions 
of  the  judicature  acts  in  this  matter.  Order  XIX,  r.  -23, 
provides  that  "  AVhen  a  contract  is  alleged  in  any  pleading, 
a  bare  denial  of  the  contract  by  the  opposite  party  shall  be 
construed  only  as  a  denial  of  the  making  of  the  conti-act  in 
fact,  and  not  of  its  legality  or  its  sufficiency  in  law,  whether 
with  reference  to  the  Statute  of  Frauds  or  otherwise." 
Pleas,  it  may  be  added,  find  no  place  in  the  present  system 
of  pleading. 

§  485.  From  these  provisions,  the  following  inferences 
have  been  or  may  be  drawn,  viz.: 

(1)  That  the  benefit  of  the  statute  can  no  longer  be  liad 
by  plea. 

(2)  That  where  the  statement  of  claim  alleges  a  contract 
without  alleging  it  to  be  in  writing,  a  demurrer  will  not  now 
lie,  but  the  statute  must  be  specially  pleaded  ;(;?)  and  this 
has  been  held  to  apply  even  to  a  case  in  which  the  state- 
ment of  claim  alleged  circumstances  in  anticij^ation  of  an 
objection  grounded  on  the  statute,  and  these  circumstances 
were  traversed  by  the  defense. (o)' 

(3)  That  where  the  statement  of  claim  itself  shows  that  the 
contract  was  not  in  writing,  and  does  not  show  any  equita- 
ble circumstances  taking  it  out  of  the  statute,  then  the  statute 
may  be  taken  advantage  of  by  demurrer.  This  point  has 
not  yet,  it  is  believed,  been  the  subject  of  direct  decision.  (^) 

(k)  Uidewav  v.  Wharton.  3  De  G.  M.  &  G.,  («)  Catlinp  v.King,5Ch  D  .(JG  i.GfiS;  Towle 

677,  >.  C  in  U.  P.,  6  H.  L.  C,  238.  v.  Topham,  37  1-    T.,  308;  SluHnllow  v.  Cot- 

(/')  Cooth  V.  jaokson,  6  Vec.  VI;  Moore  v.  terill,  W.  X.  (1881),  2.             t      ,    ^    t> 

Edwards,  4  id  , '23;  per  L,ord  Eldon  in  Rows  (o)  Clarke  v.   Callow,  -16  L.  J.  Q.   B.,  53. 

V.  Teed,  15  Id.,  375;  Blagden  v.  Bradbear,  12  See,  also,  Johnasson  v.  Bonhote,  i  Ch.  D., 

id,  466;  per  Lord  Eldon  in  ex  parte  Whit-  298                             ,         ,.              ,      •   ,        ^ 

bread,    19  id.,  212.    See  contra,  Mussell  v.  (p)  It  appears  tiiat  this  may  be  inferred 

Cooke  Free   Cli    533  from  the  decision  in  >  ale  of  Neath  Colliery 

(m)  IJaskett  v.  Cafe,  4  De  G.  &  Sm  ,  388.  Co.  v.  rurness,  24  W.  It.,  631. 


1  A  defendant  in  a  suit  in  cliancerv  cannot  put  in  several  distinct  defen.ses, 
bv  plea,  to  the  whole  of  the  complainant's  bill,  or  to  the  same  part  of  the  bill, 
without  the  special  leave  of  the  court.  Nor  can  he  set  up  two  distinct  defenses 
in  the  same  plea  without  rendering  such  plea  bad  for  duplicity.  To  justify  the 
court  in  departing  from  this  general  rule,  the  defendant  must  make  out  a  very 
special  case  of  hardship  and 'inconvenience  to  him  if  he  should  be  reipiired  to 
make  his  several  defenses  by  answer.     Where  it  would  be  necessary  to  set  out 


244        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

(4)  That  wliere  a  pleading  states  a  contract  ."generally,  the 
opposite  party's  proper  mode  oi  cUiiniing  the  benefit  of  the 
statute  is  to  plead  it  specially  in  his  next  pleading. 

(5)  That  to  such  pleading  the  old  rule  applicable  to  answers 
applies,  viz.,  that  the  benefit  of  the  statute  must  be  claimed 
distinctly  and  unambiguously.  Under  the  former  practice  it 
was  held  tliat  when  the  answer  alleged  that  no  formal  note 
of  the  contract  was  made,  and  denied  that  any  binding  con- 
tract ever  existed,  but  did  not  expressly  claim  the  benefit 
of  the  statute,  the  defendant  was  not  entitled  to  have  that 
benefit  at  the  hearing.  (</)  It  is  not  necessary  that  the  de- 
fendant should  claim  the  benefit  in  the  very  words  of  the 
statute,  but  he  must  claim  it  in  words  equivalent,  so  as  to 
call  the  attention  of  the  other  party  to  the  circumstance 
that  the  benefit  of  the  statute  is  claimed,  (r) 

(6)  If  the  plaintiff  deliver  a  statement  of  claim,  and  the 
defendant  deliver  no  defense  or  demurrer,  it  appears  clear 
that  the  defendant  cannot  set  up  the  statute  at  the  hearing 
of  the  plaintiff's  motion  for  Judgment,  for  then  the  court  is 
to  give  such  judgment  as  upon  the  statement  of  claim  the 
court  shall  consider  the  plaintiff"  to  be  entitled  to.{s) 

(7)  If  the  iDlaintiff  indorse  his  writ  for  specific  performance 
of  a  contract  and  deliver  no  statement  of  claim,  and  the  de- 
fendant deliver  no  defense,  it  would  seem  equally  clear  that 
the  defendant  cannot  have  the  benefit  of  the  statute.' 

2.    WJiat  satisfies  the  statute." 
§  486.  The  object  of  the  Statute  of  Frauds  being,  as  re- 

(a)  See  Skinner  v.  McDowall,  2  De  G.  &  of  pleading  now  required,  Byrd  v.  Nunn,  7 

Sm    '>65  Ch.  D.,  284. 

(r)  Per  Wlgram.V.  C,  In  Beatson  v.  Nich-  (s)  See  Ord.  XXIX,  r.  10. 
Olson,  6  Jur.,  621.    Cf.  as  to  the  distinctness 

very  long  accounts,  and  in  cases  where  the  discovery  sought  by  the  bill  would 
be  productive  of  injury  to  the  defendant  in  his  business,  the  court  will  grant 
its  indulgence.     Didier  v.  Davison,  10  Paige,  515. 

'  This  is  clearly  the  rule.  Osborn  v.  Endicott,  6  Cal  ,  149;  Lingan  v.  Hen- 
derson, 1  Bland,  236;  Kinzie  v.  Penrose,  2  Scam  ,  520;  Thornton  v.  Henry, 
id.,  218;  Talbot  v.  Bower,  1  A.  K.  Marsh.,  4:W;  Bean  v.  Yalle,  2  Miss., 
126;  Tarleton  v.  Vietes,  1  Gilm.,  470;  Woods  v.  Dille,  11  Ohio,  405;  Small  v. 
Ownings,  1  Md.  Ch  Dec,  363;  Hollingshead  v.  McKenzie,  8  Geo.,  457. 

">  What  the  rrntinrj  muM  contain  to  mtisfy  the  statute]  It  may  be  informal,  but 
it  must  contain  all  the  terms  of  the  contract,  either  expressly  or  by  necessary 
inference.  In  it  must  be  found  the  names  of  the  parties,  the  consideration,  the 
subject  matter,  the  promise  and  the  signature  of  the  party  sought  to  be  charged ; 
nothing  must  be  left  open  for  future  negotiation.  Laythoarp  v.  Brj^ant,  3 
Bing.  (N.  C),  735;  Ogilvie  v.   Foljambe,  3  Mer.,  53;  Nichols  v.  Johnson,  10 


STATUTE   OF    FJIAUDS,  ETC.  245 

gnnls  the  contracts  now  under  consideration,  to  prevent  the 
niiscliiei'  arising  from  the  resort  to  parol  evidence  to  prove 
the  existence  and  the  terms  of  the  alleged  contract,  it  is 
obvious  that  the  mischief  is  avoided  wherever  there  exists, 
under  the  hand  of  the  party  sought  to  be  charged,  a  written 
statement  containing,  either  expressly  or  by  necessary  infer- 
ence, all  the  terms  of  the  contract — that  is  to  say,  the  parties 
(described  either  by  names  or  descriptions  or  reference  suffi- 
cient to  preclude  any  fair  dispute  as  to  their  identity),  (^)  the 
subject  matter  of  the  contract, («)  the  consideration  and  the 
X3romise(^) — and  leaving  nothing  open  to  future  treaty. (io) 

§  487.  This,  therefore,  is  sufficient  to  satisfy  the  statute, 
and  provided  this  be  found,  no  formality  is  required,  nor 
does  it  signify  at  all  what  is  the  nature  or  character  of  the 
document  containing  such  written  statement — whether  it 
be  a  letter  written  by  the  party  to  be  charged  to  the  person 
with  whom  he  contracted,  or  to  any  other  person,  or  a  deed, 
or  other  legal  instrument,  or  an  affidavit,  (ic)' 

(0  Potter  V.  DuffieUl,  L.  R.  IS  Eq  .  4.  See,  did  not  refer  to  any  plant,  sipnol  a  mcmo- 
for  a  further  discussion  of  the  mode  of  de-  randuni  referring  !•«  the  contract,  wan  hum 
scription.  Part  IH,  chap,  iii,  §  330  et  seq.,  to  be  sufficieHtly  incorporated  with  the  con- 
where  the  cases  are  cited.  traci,  and  to  control  the  description  in  It 

(u)  See    Nene  Vall  y   Drainage    Commls-  (u»  Laythoarp  v.  liryant,  2  Bing.  N.  C  ,  .«. 

Bloners  v.  Dunkley,  i  Ch.  D.,  1,  where  a  plan  (w>  Oi;ilvle  v.  Foljambe,  3  Jler,  53. 

on  which    the    parties,  contemporaneously  (x,i  Bariiworth  v.  Young,  4  Drew,  1, 14. 
with  their  signature  of  the  contract  (which 


I 


Conn.,  192;  Doty  v.  Wilder,  15  111.,  407;  McConnell  v.  Brillharil,  17  id..  :«4; 
Jolmsou  V.  Dodsre,  id.,  4^3;  McFarsoii's  App.,  11  Pa.  St.,  .'iOS;  Sanbornc- v 
Flagler,  9  Allen."474;  Stone  v.  Browning,  bS  X.  Y.,  .598;  Helsa  v.  lUNa,  8 
Mo. ,  b93 ;  Huff  v.  Shepard,  58  id. ,  242.  It  need  not  be  sealed  nor  acknowleilged. 
and  words  of  inheritance  need  not  be  employed,  ^vhere  an  intention  to  pas.s  the 
fee  appears.  McFarson's  App.,  11  Pa.  St.,  503.  The  writing  may  be  by  a 
pleading,  an  affidavit  or  a  receipt,  and  it  may  be  found  in  one  or  more  letters 
It  may  be  in  the  language  of  both  parties,  or  either  of  them.  Barkworthv. 
Young,  4  Drew,  13;  Ewing  r.  Gordon,  49  N.  H.,  444;  Tripp  v.  Bishop,  ob  Pa. 
St.,  424;  Joseph  v.  Holt,  37  Cal.,  250;  Welford  v.  Beazely.  3  Atk.,  5U,J;  Deut- 
son  V.  McKenzie,  1  Dessau.'s  Eq.,  289.  The  entire  agreement  must  be  written 
or  printed,  and  may  be  in  pencil.  Cary  v.  Hyde,  49  Cal..  470:  1  atlon  v.  Uevc- 
lin's,2Phila.,  1U3;  Draper  v.  Pattina,  2  Speers.  292;  Merrill  v.  Clasor,  12  Johns. 
484.  A  contract  by  parol,  or  in  writing,  is  presupposed  by  the  statute  ot 
frauds.  The  memorandum,  which  is  necessary  to  its  validity,  and  the  agree- 
ment itself,  are  verv  different  things;  one  maybe  made  at  one  time,  and  the 
memorandum  at  some  other.  If  the  promise  of  one  of  the  parties  is  the  con- 
sideration for  the  promise  of  the  other,  in  such  case  both  niu.st  be  concurrent, 
and  obligatorv  upon  both  at  theisame  time.  Lester  v.  bennctt,  1-  Hurli.,  .)U-: 
Jones  v,  Noble,  3  id.  (Kv.),  694;  Yerger  v.  Green,  4  Gill,  472;  Duvall  v.  Myers. 
2  Md.  Ch.,  401. 

1  In  Barrv  v.  Coombe,  1  Pet..  G40,  it  is  said  that  courts  of  (•(luily  are  not 
rigid  with  regard  to  the  direct  and  immediate  purpose  for  which  t lie  written 
exndence  of  a^'contract  was  created:  -'It  is  written  evidence  llial  the  statult- of 
fraud  requires  and  a  note  or  letter  mav  be  sufficient  to  bring  the  case  withm 
the  statute."    Thus  the  following  paper  was  held  to  be  a  sutlicieut  uicmoran- 


240      vny  ux  simx-ific  PERFOiniANCE  of  contracts. 

The  (|iiestion  of  wliat  is  necessary  to  be  settled,  and  tliere- 
iore  wliat  is  necessary  to  be  exi^ressed,  in  order  tliat  a  writ- 

dum  of  the  turms  of  an  agreement  to  sell  land  within  the  statute  of  frauds  : 
"Ellswortii,  Dec.  15th,  \SU.  Received  of  D.  B.  and  C.  S.  U.  $1,000,  to  be 
accounted  for,  if  they  shall  furnish  me  satisfactory  security  for  certain  lands 
on  the  Naraguagas  river,  say  119,000  acres  for  $113,000,  on  or  before  Friday 
morning  next:  otherwise  to  be  forfeited — John  Black."  Clark  v.  Burnham,  3 
Story,  1.  And  a  receipt  in  these  terms:  "Received  from  A.  $20,  on  account 
of  the  purchase  of  a  house  and  lot.  No.  38  Hammond  street,  at  $2,900,  subject 
to  a  lease  to  B.  for  four  years  from  the  tirst  of  May  next:  $1,000  may  remain 
by  bond  and  mortgage:  the  balance  the  first  of  May,  when  the  deed  will  be 
executed  and  possession  given" — amounts  to  a  valid  contract  for  the  sale  of 
land,  under  the  statute  in  New  York.  Westervelt  v.  Matheson,  1  Hoff.  Ch  ,  37. 
Again,  in  Hutcher  v.  Hatcher,  1  McMuUan's  Ch.,  311,  land  having  been  sold 
on  execution  against  A.,  B.  agreed,  by  parol  with  A.,  to  advance  the  money 
to  the  purchaser  at  the  slieriff  s  sale,  "to  take  a  conveyance  to  himself,  and  t.) 
reconvey  to  A.  upon  being  reimbursed  for  the  sum  so  advanced.  Upon  a  sub- 
sequent payment  by  A.,  under  the  agreement,  B.  gave  him  a  written  receipt 
therefor,  as  in  part  payment  of  the  land,  describing  it,  and  concluding  thus  : 
"This  in  part  payment  to  redeem  the  land  from  B."  It  was  held,  that  there 
was  a  sufficient  memorandum  of  the  contract,  within  the  statute  of  frauds, 
and  that  extraneous  written  evidence  was  admissible  to  show  the  consideration. 
Thomas  _y.  Todd,  3  Litt.,  337.  is  a  case  somewhat  in  point  It  was  there  held, 
that  an  advertisement  describing  the  situation  and  quality  of  land,  signed  by  a 
vendor,  and  being  the  onl}'  printed  or  written  memorandum  of  the  contract  on 
his  part,  was  held  to  contain  the  particulars  with  which  he  was  l)Ound  to  com- 
ply; and  where  he  was  unable  to  do  so,  the  contract  for  a  purchase  of  the  land 
was  decreed  to  be  rescinded.  See  Gray  v.  James,  4  Dessau.,  185;  Little  v. 
Peason,  7  Pick.,  301,  is  a  case  of  the  same  nature  There  A.  paid  B.  .$100,  re- 
ceiving from  B.  a  note  payable  to  A.  or  order,  on  demand  for  $100  and  interest, 
with  the  following  memorandum:  "  N.  B.  This  note  is  to  be  given  up  when  I 
give  him  a  deed  of  the  land,  which  I  have  engaged  to  give  him. "  Signed 
by  B.  It  was  held  that  this  was  a  sufficient  memorandum  whereby  to  compel 
a  conveyance.  But  the  following  writing,  to  wit:  "4th  January,  1808.  Re- 
ceived of  J.  E.  $ ,  in  part  pay  of  a  lot  bought  of  me,  in  the  town  of  V.,  it 

being  the  cash  part  of  the  purchase  of  said  lot.  Nathan  Deadman.  Test., 
Will.  Atwood  " — was  held  not  to  be  a  sufficient  memorandum  to  take  the  agree- 
ment out  of  the  statute.  Ellis  v.  Deadman,  4  Bibb  ,  46fj  A  memorandum 
must  contain,  within  itself,  or  by  reference  to  some  other  writing,  the  terms  of 
the  agreement  with  reasonable  certainty.  Parkhurst  v.  Van  Cortland,  1  John. 
Ch.,  274;  Coles  v.  Bowne,  10  Paige,  .526.  Therefore  where  A.  proposed,  in 
writing,  to  sell  to  B.,  all  that  piece  of  property  known  as  the  TJnion  Hotel 
property,"  it  was  held  not  to  be  a  sufficient  description  to  take  the  case  out  of 
the  statute  of  frauds,  parol  evidence  being  necessary  to  show  what  property 
was  comprehended  under  the  words  "  Union  Hotel  property."  King  v.  Wood, 
7  ]Miss..  389.  But  the  memorandum  need  contain  only  the  substance  of  the 
contract,  and  not  a  detail  of  all  particulars;  so  that  if  the  memorandum  recog- 
nize that  an  estate,  chargeable  wntli  certain  annuities,  is  sold  subject  to  them, 
by  mentioning  when  the  payment  of  the  annuities  by  the  purchaser  is  to  begin, 
it  is  sufficient.  Ives  v.  Hazard,  4  li.  I.,  14;  see  Kay  v.  Curd,  6  B.  Monr.,  lOO. 
Handbills  and  newspaper  notices,  published  at  the  time  of  the  sale,  are  not  ad- 
missible as  explanatory  evidence,  the  memorandum  containing  no  reference  to 
them.  O'Donnell  V.  Leman,  43  Me.  158.  Whether  or  not  the  consideration 
must  be  expressed  upon  the  face  of  the  instrument,  is  subject  to  different  rules 
in  the  different  States.  In  England  the  question  has  long  since  been  well- 
settled.  There  the  leading  decision  on  the  subject  is  Wain  v.  Warlters,  5  East, 
16,  decided  at  law  by  Lord  Ellenborough,  who  then  took  occasion  to  explain 
the  meaning  of  the  word  agreement,  as  used  by  the  Statute  of  Frauds,  defining 
it  to  be  a  mutual  contract  between  two  or  more  parties,"  and  excluding  its 
more  loose  acceptation  of  a  promiie  or  an  xindertdkivrj.  He  said  that  the  statute 
was  never  meant  to  enforce  any  promise  which  was  before  invalid,  merely  be- 


STATUTE   OF   FRAUDS,  KTC.  '2A1 

ten  memorandum  shall  be  evidence  of  a  coniijleted  contract 
will  be  found  more  fully  discussed  in  the  chapterfy)  on  the 
incompleteness  of  the  contract.' 

(y)  Part  III,  chap.  Hi.    And  see  Blakeney    v.  Hardie,  I.  R.  8  Eq.,  381 ;  Carrlpv  v.  llrock 

(collateral  contract),  I.  U.  5C.  L.,  5<Jl. 

cause  it  was  put  in  writiusr;  that  a  promi.'^e,  without  a  consideration,  was  a 
mere  nudum  pactum ;  and  that  tlie  object  of  the  statute  would  be  defeate<l  if 
the  consideration  were  not  expressed,  as,  in  tliat  case,  it  might  be  illeiral.  or  the 
promise  made  upon  a  condition  precedent,  wliicli  tlie  party  charged  may  not 
afterwards  be  able  to  prove,  the  omission  of  which  might  materially  vary  the 
promise  by  turning  tliat  into  an  absolute  promise  which  was  only  a  condi- 
tional one.  This  decision  has  been  sustained  in  Stadt  v.  Lill.  9  East,  348;  Jen- 
kins V.  Reynolds,  ;i  Brod.  6c  Bing.,  14:  Saunders  v.  AVakefield.  4  B  »i:  Aid., 
495;  Morley  v.  Boothlv.  3  Bing.,  107;  Cole  v.  Dver,  1  Cr.  it  .Ir.,  4(5 1 ;  James 
V.  Williams,  3  Nev.  Sc  Man.,' 196;  Clancv  v.  Pi'ir-rott,  4  id.,  4n0;  Haik.-s  v. 
Todd,  8  Ad.  &  El.,  846;  Sweet  v.  Lee,  3  M.  &  Gr.';  452;  Bainbridge  v.  Wade. 
16  Q.  B.,  89.  The  .strict  meaning  of  the  word  agreement,  as  detined  in  Wain  v. 
Warlters,  should  1)e  borne  in  mind,  as  in  ca.ses  arising  under  the  seventeenth 
section  of  the  statute,  wliich  does  not  contain  the  word  agreement,  tlie  consid- 
eration need  not  be  expressed.  Egerton  v.  Mathews,  6  East,  307;  Marshall  v. 
Linn,  6  M.  &  W.,  118.  The  ruling  in  Wain  v.  Warlters  has  been  approved  in 
Sears  t.  Brink,  3  John..  210;  Rogers  v.  Kneeland,  10  Wend.,  218;  Packard  v. 
Wilson,  15  id.,  343;  Bennett  v.  Pratt,  4  Denio,  275;  Staats  v.  Howlelt.  id.,  559, 
and  has  become  the  statute  law  of  New  York.  2  R.  S.,  pt.  2,  ch.  7.  tit.  2,  <j  2. 
In  Maryland  and  Georgia,  decisions  have  been  given  to  the  same  etfect.  Wy- 
man  v."Gray,  7  liar.  &  John.,  409;  Elliot  v.  Giese,  7  id.,  457;  Edelen  v.  Gough, 
5  Gill,  103;"  Henderson  v.  Johnson,  6  Geor.,  390.  But  the  contrary  doctrine 
has  been  upheld  in  Packard  v.  Richard.son,  17  Mass..  112;  Sage  v.  Wilcox.  6 
Conn.,  81;  Tufts  v.  Tuft.s,  3  M.  &  W.,  456;  Reed  v.  Evans,  17  (Thio,  128;  Git- 
lighan  v.  Boardman,  29  Me.,  79.  In  some  of  the  States  the  language  of  the 
statutes  has  been  changed,  and  the  Englisli  doctrine,  resting  ujion  the  meaning 
of  the  word  agreemenf,  repudiated.  Viok-tt  v.  Patton,  5  Crancli,  142;  Taylor 
V.  Rose,  3  Yerg.,  330;  Gilman  v.  Kibler,  5  Humph.,  19;  Wren  v.  lVar>e.  4 
Sm.  i&Mar.sh.,  91.  "Where  an  instrument  of  guaranty  is  under  seal,  this  ex- 
presses sufficient  consideration  to  be  deemed  a  comi)liance  with  the  .'^tntute 
requiring  it  to  be  expressed.  Ro.seubamn  v.  Guuter,  16  N.  Y.  (2  Smitli),  415. 
And  where  the  consideration  of  a  written  guaranty  is  expressed  to  be  for  value 
received,  it  is  sufficient  under  the  Statute  of  Frauds.  Cooper  v.  Dcdrick.  23 
Barb.,  316;  Day  v.  Elmore,  4  Wis..  190.  If  a  contract  be  in  its  nature-  entire, 
and  in  one  part  it  satisfies  the  statute,  and  in  another  it  does  not.  tht'n,  it  has 
been  decided  at  law,  it  is  altogether  void.  Cooke  v.  Toombs,  2  Anstr.,  420; 
Lea  V.  Barber,  id.,  425;  Charter  v.  Beckett,  7  Term  R.,  201;  Vaughan  v.  Han- 
cock, 3  C.  B.,  76G;  Lexington  v.  Clarke,  2  Vent.,  223;  Mechrlen  v.  \\  Maw,  7 
Ad.  &  El.,  49;  Thomas  v.  Williams,  10  B.  &  Cr.,  664;  Loomis  v.  Ni-wliall.  15 
Pick.,  159.  In  Irvine  v.  Stone,  6  Cu.sh..  508,  it  was  lu-ld  that  a  contract  for  the 
purchase  of  coals  at  Philadelphia,  and  to  pay  for  the  freight  of  the  same  to 
Boston,  if  void  by  the  Statute  of  Frauds  as  to  the  sale,  is  v.. id  also  and  cannot 
be  enforced  as  to'the  freidit;  thou-;h  the  latter,  if  it  stood  alone,  wuuhl  not  l»e 
within  the  statute.  See  Thayer  v.  Roeh.  13  Wend..  53.  But  if  the  parts  arc 
severable,  then  it  may  be  good  in  part  and  void  in  part.  Mayfield  v.  ^\  adsley, 
3B.  ct  C,  357. 

'  Subject  matter  of  contract  imufflciently  dexcrV>td.  ]  Tlie  memonuulum  n-lating 
to  realestate  in  the  following  cases  was  indefinite,  and  tliercfore  insulUcicnt  : 
Holmes  v.  Evans,  4S  Miss.,"'247;  Pipkin  v.  James,  1  Humph  .  325;  Meadows 
V.  Meadows,  3  IMcCord,  458;  Church  of  the  Advent  v.  Farn.w,  7  Rich  '.s  Kq., 
378;  Ray  v.  Curd,  6  B.  M.,  100;  Ives  v.  Armstrong.  5  R.  1..  5(i7;  Jslieid  v. 
Stamps,  2  Sneed,  172;  Farwell  v.  iVIather,  10  Allen,  322. 

Examples  inhere  tJie  description  iras  held  to  be  s'/jfinVht  ]  If  a  surveyor  can 
locate  it,  a  contract  is  sutlieientlv  desrriiitive.  White  v.  Hermann.  51  111.,  283; 
Wiley  V.    Robert,  27  Mo..   38S;  "Boardman  v.   Ford,   6  Pet..   345;  lIoo|K-r  v. 


248        FUY  ON  SPECIFIC  PEMFOKMANCE  OF  CONTRACTS. 

§  48H.  There  is,  of  course,  no  binding  contract  when  the 
writing  appears  only  to  be  terms  agreed  on  as  a  basis  for  a 
contract,  and  not  the  contract  itself  ;{z)  or  wliere  it  provides 
tliat  any  of  the  terms  are  afterwards  to  be  settled ;(«)  or 
where  the  matter  is  nnconcliided,  and  one  party  may  still 
withdraw  his  consent  ;(&)  or  wdiere  there  appears  any  de- 
sign of  furtlier  negotiation  ;(c)  or  where  one  of  the  parties 
was,  at  the  time  when  the  memorandum  was  signed — which 
is  the  point  of  time  at  which  the  statute  requires  the  plain- 
tiff to  prove  a  concluded  contract  existing(fZ) — incapable  of 
contracting  binding]y.(e)  Therefore  where  the  purchaser's 
solicitor  offered  £25, 000  for  the  purchase  of  an  estate,  which 
the  defendant's  agent  accepted,  " subject  to  the  terms  of  a 
contract  being  arranged  between  his  (the  vendor's)  solicitor 
and  yourself,"  the  court  considered  this  to  be  a  contract  to 
enter  into  a  contract  with  respect  to  which  some  terms  were 
already  agreed  on,  and  the  rest  w^ere  to  be  settled  by  future 
arrangement,  and  that  if  they  could  be  agreed  on,  this  was 
to  become  a  valid  contract ;  but  such  a  contract  never  having 
been  come,  to,  the  court  dismissed  the  purchaser' s  bill  ask- 
ing for  a  specific  performance.  (/)     On  this  principle  the  ap- 

(2)  Frost  V.  Moulton,  21  Beav.,  596.  C,  6  H.  L.  C,  112.    See,  too,  Winn  v.  Bull,  7 
(a)  Wood  V.  Mifialey,  5  De  G.  M.  &  G.,  41.  Ch.  D.,  29.    Whether  the  expression  in  the 
(6)  Earl  of  Glengal  v.  Barnard,  1  Ke.,  7G9,  memorandum  that  the  contract  is  subject  to 
aflirmedasLordGlengal  v.Thynne,  .St.  Leon,  the  approval  of  the  title  by  the  purchaser's 
Law  of  Prop.,  o6.    see,  too,  Hussey  v  Home-  solicitor  is  enough  to  make  the  contract  con- 
Payne,  4  App.  C.,  311.  dltional    appears   doubtful.     Compare    the 

(c)  Tawney  v.  Crowther,  3  Bro.  C.  C,  318;  observations  of  Lord  Carlns  In  Hussey  v. 
Stratford  V.  Bosworth,  2  V.  &B.,  341;  Wilco.x  HornePayne,  4  App.  C,  321,  322,  with  the 
V.  Redhead,  28  W.  R.,  795.  judgments  of  the  Court  of  Appeal  in  S.  C,  8 

(d)  Mundayv    .\ sprey,  13  Ch.  D.,  857.  Oh.   D.,  675  et  seq.    See,  also,  Hudson  v. 

(e)  Avery  v.  Griffin,  L   R.  6  Eq.,  606.  Buck,  7  Ch.  D.,  683. 
(/)  Honeyman  V.  Marryat,  21  Beav.,  14;  S. 

Lanej^  37  Ala.,  338;  Hatcher  v.  Hatcher,  1  McMullan's  Eq.,  311 ;  Mos.s  v.  An- 
derson, 44  Cal.,  3;  Simmons  v.  Spruill,  3  Jones'  Eq.,  9;  Ives  v.  Hazard,  4  R.  I., 
14;  Spangler  v.  Danforth,  65  111.,  152;  Simpson  v.  Breckenridge,  33  Pa.  St.,  287. 
Parol  evidence  to  identify  the  property  sold.']  Wells,  J.,  in  Hurley  v.  Brown,  98 
Mass.,  545,  says  :  "It  is  not  a  question  of  the  sufficiency  of  the  writing  under 
the  Statute  of  Frauds,  so  much  as  it  is  the  right  to  resort  to  parol  evidence  in 
aid  of  the  writing  where  an  ambiguity  exists  in  respect  to  the  property  intended 
to  be  sold,  or  to  which  the  contract  relates.  The  most  specific  and  precise  de- 
scription of  the  property  intended  requires  some  parol  proof  to  complete  the 
identification.  A  more  general  description  requires  more.  When  all  the  cir- 
cumstances of  pos.session,  ownership,  situation  of  the  parties,  and  their  relation 
to  each  other  and  to  the  property,  as  they  were  when  the  negotiation  took 
place  and  the  writing  was  made,  are  discIo.sed,  if  the  meaning  and  application 
of  the  writing,  read  in  the  light  of  those  circumstances,  are  certain  and  plain, 
the  parties  will  be  bound  by  it  as  a  sufficient  written  contract  or  memorandum 
of  their  agreement."  Bee,  also,  Ross  v.  Parker,  72  Pa.  St.,  186;  Murdock  v. 
Anderson,  4  Jones'  Eq.,  77;  Mead  v.  Parker,  115  Mass.,  413;  see,  as  to  usage 
and  customs  in  trade,  Salmon  Falls  Manuf'g  Co.  v.  Goddard,  14  How.,  446; 
Barry  v.  Combe,  1  Pet.,  C40. 


STATUTE   OF   FEAUDS,  ETC.  249 

proval   of   a  draft   does    not  of    itself    constitute   a   con- 
tract. {(/) 

§489.  The  court  will  refuse  to  act  even  where  it  only 
"rests  reasonably  doubtful  whether  what  jjassed  was  only 
treaty,  let  the  progress  towards  the  conlines  of  agreement 
be  more  or  less-'X^**) 

§  490.  But  the  mere  fact,  though  appearing  on  the  paper, 
that  a  more  formal  contract  is  intended  to  be  executed,  will 
not  prevent  a  paper  duly  signed  and  containing  all  the  terms 
from  being  a  contract,  an^'  more  than  will  a  reference  to  deeds 
thereafter  to  be  executed,  (z)  Therefore  where  A.  wrote  to 
B.,  "I  offer  you  £3,000  for  the  estate,"  and  B.  replied.  '^ 
accept  your  offer,  and,  if  you  approve  of  the  inclosed,  sign 
the  same,  and  I  will,  on  receipt  of  the  deposit,  sign  you  a 
copy"  (the  inclosure  was  not  produced),  the  court  held  that 
there  was  a  binding  contract,  and  treated  the  inclosure  as  a 
mere  means  of  carrying  that  contract  into  elfect;(y)  and  in 
another  case,  a  correspondence  about  the  taking  of  a  house 
was  held  to  constitute  a  sufficient  contract,  though  the  agent 
of  the  lessor  accepted  the  offer  thus,  "These  terms  I  have 
submitted  to  Mrs.  S.,  and  I  am  authorized  to  say  they  are 
accepted,  and  that  her  solicitor  will  draw  up  a  proper  agree- 
ment for  sio:nature,  which  I  will  forward  to  you."(^) 

§  491.  But  wherever  the  formal  contract  contemplated  is 
to  be  anything  more  than  merely  ancillary  to  the  real  con- 
tract— wherever  any  new  term  not  expressed  or  implied  in 
the  earlier  contract  might  be  introduced  into  the  formal 
one,  the  first  document  will  not  by  itself  be  binding.  And 
wherever  the  concluded  nature  of  the  arrangement  does  not 
evidently  a^Dpear  on  the  writings,  the  fact  that  a  subsequent 
and  more  formal  contract  was  intended  to  be  entered  into 
will  be  strong  evidence  that  the  previous  negotiations  were 
not  intended  to  amount  to  a  contract. (Z)' 

(g)  Doe  d.  Lambonrn  v.  Peiigriph,  4  Car.  &  1  Ke.,  741 ;  Cowley  v.  Watts,  17  Jur,  ITi;  and 

P.,  312.  Biipra,  §  JSti. 

(h)  Per  Lord  Eldon  In  Hiiddleston  v.  Bris-  (;')  Glbbins  v.  North  Kastcrn  Metropolitan 

coe,  11  Ves.,  592.  Aevluni  District,  11  Ucuv.,  1. 

(i)  Fowle  V.  Freeman,  9  Vi'!>.,  351 ;  Kennedy  (Ai  skinner  v.  M'I)o\vall,J  DeG.  A  Sm.,2t». 

V.  Lee,  3  Mer.,  441.   See  per  Lord  Cranworth  (/)  Kidgwiiy  v.  Wharton,  G  II    L.  C  ,  JSS, 

in  Ridgway  v.  Wharton,  (;  II    L.  C,  264;  per  and  particularly  PP-  '-*>*'.  •^• 
Lord  Langdale,  M.  K.,  iu  Thomas  v.  Dering, 

^  How  to  make  a  bindinr/  contract  within  the  !<tatut(\]  'NVIk'iv  the  writti'ii  iiieni- 
orandum  itself  does  not  contaiu  all  the  particulars  of  the  ajrreeinent.  it  imist 
refer  to  some  other  writiug  for  the  parts  omitted.  It  may  consist  of  many 
parts,  but  all  must  be  connected,  and  form  together  the  entire  agreement  coii- 


250  I'llY  UN  SPECIFIC  TEKFOK-MANCE  OF  CUNTKACTS. 

§  49*3.  In  tlie  case  of  Oliinnock  v.  The  Marchioness  of 
Ely,rwi)  the  plaintiff  had  proposed  certain  terms  of  pur- 
chase to  the  defendant's  agents,  who  had  replied  to  the 
plaintiff  that  they  were  instructed  by  their  client  to  proceed 
with  tlie  sale  to  him,  and  that  a  draft  contract  was  being 
prepared  and  would  be  forwarded  to  him  for  approval  in  a 
few  days.  It  was  contended  on  the  plaintiff's  behalf  that 
this  letter  clearly  recognized  the  fact  that  there  had  been  a 
complete  sale  to  him,  and  also  amounted  to  a  distinct  accept- 
ance of  certain  terms  previously  stated  by  him  in  writing. 
But  it  was  held  by  Lord  Westbury  that  the  true  meaning 
of  the  letter  was  that  the  defendant  was  willing  to  accept 
the  plaintiff's  terms,  if  the  plaintiff  would  agree  to  the 
draft  contract  about  to  be  sent  to  him.  "I  entirely  ac- 
cept,'' said  his  lordship, (7i)  "the  doctrine  contended  for  by 
the  plaintiff's  counsel,  and  for  which  they  cited  the  cases 
of  Fowle  V.  Freeman,  (o)  Kennedy  v.  Lee, (^9)  and  Thomas  v. 
Dering,((?)  which  establish,  that  if  there  had  been  a  final 
agreement,  and  the  terms  of  it  are  evidenced  in  a  manner 
to  satisfy  the  statute  of  frauds,  the  agreement  shall  be  bind- 
ing, although  the  parties  may  have  declared  that  the  writing 
is  to  serve  only  as  instructions  for  a  formal  agreement,  or 
although  it  may  be  an  express  term  that  a  formal  agree- 
ment shall  be  prepared  and  signed  by  the  parties.  As  soon 
as  the  fact  is  established  of  the  final  mutual  assent  of  the 
parties  to  certain  terms,  and  those  terms  are  evidenced  by 
any  Avriting  signed  by  the  party  to  be  charged  or  his  agent 
lawfully  authorized,  there  exist  all  the  materials,  which  this 
court  requires,  to  make  a  legally  binding  contract.  But  if 
to  a  proi30sal  or  offer  an  assent  be  given  subject  to  a  i)ro- 
vision  as  to  a  contract,  then  the  stipulation  as  to  the  con- 

(m)  4  neG.  J.  &S.,638.  (p)  3  Mer.,  441. 

(n)  4  Pe  G.  J.  &  S.,  645.  ('/)  1  Ke.,  729. 

(o)  9  Ves.,  351. 

templated.  If  letters  are  relied  upon,  they  must  distinctly  recognize  and  adopt 
the  contract.  Allen  v.  Bennett,  3  Taunt.,  169;  Powell  v.  Dillon,  2  B.  &:  B., 
41G;  Esmay  v.  Gorton,  18  111.,  483;  Tallman  v.  Franklin,  14  N.  Y.,  584;  Com- 
mon V.  Bay,  3  Gray,  447:  Williams  v.  Bacon,  2  id.,  387;  Marsh  v.  Hyde,  3  id., 
333;  Merton  v.  Dean,  13  Mete,  385;  Lerned  v.  Wannemacher,  9  Allen,  412; 
Bourland  v.  County  of  Peoria,  16  111.,  538;  .lohnsou  v.  Dodge,  17  id.,  433; 
Long  V.  McLaughlin,  14  Minn.,  72 ;  Sanborn  v.  Flagler,  9  Allen,  474.  A  telegram 
was  sent,  and  a  letter  sent  the  same  day,  stating  that  a  proposition  had  been 
accepted  bv  telegraph.  Held,  sufficient  subscription  to  take  the  case  out  of 
the  statute'  of  frauds.  Trevor  v.  Wood,  36  N.  Y.,  397;  Hazard  v.  Day,  14 
Allen,  487. 


STATUTE   OF   FRAUD?^,  ETC.  'iol 

tract  is  a  torm  of  tlie  assent,  aud  there  is  no  agreement 
independent  of  tlia,t  stipulation," 

§  49 J{.  The  law  upon  this  point  has  been  summarized  as 
follows  by  Jessel,  M.  R.:(r)  "It  comes,  therefore,  to  this, 
that  where  you  have  a  ijroposal  or  agreement  made  in 
writing  expressed  to  be  subject  to  a  formal  contract  being  • 
prei)ared,  it  means  what  it  says  ;  it  is  subject  to  and  is  de- 
pendent upon  a  formal  contract  being  prepared.  When  it 
is  not  expressly  stated  to  be  subject  to  a  formal  contract 
it  becomes  a  question  of  construction,  whether  the  parties 
intended  that  the  terms  agreed  on  should  merely  be  put  into 
form,  or  whether  they  should  be  subject  to  a  new  agree- 
ment, the  terms  of  which  are  not  expressed  in  detail."  In 
that  case  accordingly  a  writing  purporting  to  be  a  contract 
for  a  loan,  but  expressed  to  be  "made  subject  to  the  prep- 
aration and  approval  of  a  formal  contract,"  was  held  not  to 
be  a  concluded  contract,  (.s-)' 

(r)  In  VVinu  V.  Bull,  7  Ch.  D.,3-2.  See  Rum-  worth. 31  L.  J.  Ex.,  448;  Ileyworth  v.  Kiii^Mit, 
mens  v.  Robins,  3  De  G.  J.  &  S.,  88;  Oxtord    33  L.  J.  C.  P  ,  298. 

V.  Provand,  L.  R.  2  P.  C,  135;  Watts  v.  Ains-        (s)  See,  too,  Brian  v  Swainson,  1  L.  R.  Ir., 

135. 

'  Several  wiitinr/s,  jmrol  evidence  to  contract  ]  AVliere  tliere  are  several  ■svrilin.'Ts, 
one  containing  the  terms  of  the  agi-eement,  and  the  other  the  signed  agreement 
which  directly  refers  to  the  othel-s,  the  paper  referred  to  may  be  identitied 
by  parol.  This  must  not,  however,  be  understood  as  enlarging  the  scope  of 
parol  evidence.  Clinau  v.  Cooke,  1  Sch.  &  Let".,  8;j;  Noale  v.  Buchanan.  U 
Gill.  &  John.,  314;  TaUman  v.  Franklin,  14  N.  Y.,  584;  Inhab  of  Freeport 
V.  Bartol,  3  Me.,  340;  Carter  v.  Shorter,  57  Ala.,  253;  Rhoades  v.  Castner.  12 
Allen,  130.  There  must  be  no  possi])ility  for  the  substitution  of  another  pajier. 
where  parol  evidence  is  relied  upon  to  connect  one  writing  with  another,  and 
the  paper  referred  to  must  he  in  being  when  the  agreement  is  signed.  Sinitli  v. 
Arnold,  5  Mason.  416;  Waul  v.  Kirkman,  27  Miss.,  32:i;  Stocker  v.  Partridge. 
2  Rob.,  193:  Hvde  v.  Cooper.  13  Rich.'s  Eq..  25U.  An  imperfect  memor.indum 
was  attempted 'to  be  aided  by  hand-bills  and  newspaper  notices  signeil  by  the 
defendant,  and  exhibited  bv  him  at  the  time  of  the  sale,  in  wliich  the  terms  of 
the  sale  were  stated.  Held,  that  the  memonuulum  could  not  be  so  aided. 
O'Donnell  v.  Leeman,  43  Me.,  158. 

The  memorandum  mut<t  contain  the  mbstantial  terms  of  the  conirnct.}  "The 
jurisdiction  of  equity,  in  specific  performance,  proceeds  on  the  supposition  that 
the  parties  have  not'ouly  agreed,  as  between  themselves,  upon  every  material 
matter,  Ijut  that  the  matters  so  agreed  on  are  of  such  a  nature,  aud  the  sul)jects 
of  agreement  so  delineated  or  iudicated,  either  directly  or  by  reference  to  some- 
thing else,  or  so  raised  to  view  bv  legitimate  implication,  that  the  court  can  and 
may^collect— and  in  their  proper  relations— all  the  essential  elements,  and  pro- 
ceed intelligentlv  and  practically  in  carrying  into  execution  the  verv  things 
ao-reed  upon,  and  standing  to  be  performed  "  Graves.  C.  J.,  in  Rlanchard  v. 
Detroit  R.  R.  Co  ,  31  Mich.,  43;  Blagden  v.  Bradhear.  12  Yes..  4U0;  Rarkluir^t 
V.  Van  Courtlaudt,  I  John  's  Ch.,  273;  Smith  v.  Stanton.  15  \  t..  (iSo;  Adams  v 
McMillin,  7  Porter,  43;  Abeel  v.  Radclitl'.  13  John  ,  297;  Calkins  v.  Falk.  39 
Barb.,  ()20;  Grace  v.  Denison,  114  Mass..  1(J;  Mayer  v.  Adrian,  77. >.  C.  83. 

Receipt  for  purchase  money,  when  sufficient]     Where  the  vendor  of  real  estate 
.signs  a  receipt  for  a  part  of  the  purchase  money,  this  may  constitute  a  suth- 


2o2         lllY  ox  SI'IX'IFIC  PKia-OiniAXCE  OF  CONTRACTS. 

J<  494.  "If,"  said  Jessel,  M.  R  ,  in  another  case,  "there 
is  a  simple  acceptance  of  an  offer  to  pnrchase,  accompanied 
by  a  statement  that  the  acceptor  desires  tliat  the  arrange- 
ment should  be  put  into  sonin  more  formal  terms,  the  mere 
reference  to  such  a  proposal  will  not  prevent  the  court  from 
enforcing  the  final  agreement  so  arrived  at.  But  if  the 
agreement  is  made  subject  to  certain  conditions  then  speci- 
fied or  to  be  specified  by  the  person  making  it,  or  by  his 
solicitor,  then,  until  those  conditions  are  accepted,  there  is 
no  linal  agreement  such  as  the  court  will  enforce.  (?!) 

§  495.  In  a  case  in  which  estate  agents  received  an  offer 
for  sale,  and  replied  that  they  were  instructed  to  accept  it, 
and  had  asked  their  principal's  solicitor  "  to  prepare  con- 
tract," it  was  held  that  notwithstanding  these  words  the 
acceptance  was  complete,  [u) 

§  490.  In  the  case  of  Rossiter  v.  Miller,  (?))  the  agent  of 
the  plaintiffs  (vendors)  wrote  to  the  defendant  (purchaser) 
reciting  a  parol  offer  which  the  defendant  had  made  to  him, 
and  accepting  it  on  behalf  of  the  plaintiffs,  and  said:  "I 
have  requested  Messrs.  H.  &  M.  to  forward  you  the  agree- 
ment for  purchase."  The  purchaser  replied  in  terms  of  ac- 
ceptance ;  and  it  was  held  by  the  House  of  Lords  that  the 
contract  was  complete,  notwithstanding  the  expressed  inten- 
tion to  forward  a  formal  contract. 

§  497.  The  statute  requiring  that  the  agreement,  or  the 
memorandum  or  note  thereof,  shall  be  signed  by  the  party 
to  be  charged  therewith,  or  his  agent,  and  not  requiring 
that  it  shall  be  signed  by  both  parties  to  the  contract,  it  has 

(t)  Crossley  V.  Maycock,  L  R.  18  Eq.,  181.  observations  ef  James,  L.  J.,  in  Smith  v. 

(M)  Honnewell  v.  Jenkins,  8  Ch.  D.,  70.  Webster,  3  Ch.  D.,  56,  and  rlistinguish  Brif  n 

(V)  3  A  pp.  C.  1124,  reversing  the  decision  v.  Swainson,  1  L.  K.  Ir.,  135. 
of  the  Court  of  Appeal,  5  Ch.  D.,  G48.    Cf.  the 


cient  memorandum  of  sale,  where  it  describes  the  land  sold,  and  states  the 
price.  Westervelt  V.  Matherson,  1  Hoffm.'s  Ch.,  36;  Barrickman  v.  Kuyken- 
dell,  6  Black.,  21;  Ellis  v.  Deadman,  4  Bibb.,  406;  Soles  v.  Hickman,  20  Pa. 
St.,  180;  Holman  v.  Bank  of  Norfolk,  12  Ala.,  369. 

All  the  terms  oftlie  contract  must  be  assented  to  on  both  sides,  in  order  to  take 
such  contract  out  of  the  statute  by  letters.  Nesham  v.  Sclby,  L.  R.,  13  Eq., 
lUl;  aff'd,  L.  R.,  7Ch.,406. 

States  in  ichich  the  consideration  need  not  be  expressed  in  the  icriting.'\  Illinois, 
St.  of  1877.  vol.  3,  p.  210,  §§1,2;  Indiana,  St.,  ch.  66,  §  1;  Kentucky,  K.  S., 
ch.  22  ^  1;  Maine,  R.  S.,  ch.  3,  §  1;  Massachusetts,  Gen.  St.,  1873,  ch.  105, 
^  2;  :>Iichigan,  Comp.  Laws,  1871,  ch.  100,  i<  9;  Nebraska,  St.,  1873,  ch.  25,  §  24; 
Virsiinia,  Code  1849,  ch.  143,  |5 1;  West  Virginia,  Code,  ch.  98,  §1. 


STATITK    OF    FRAI'DS,  ETC.  253 

been  held  botli  in  the  courts  of  equity, (w)  and  coninioii 
law,(cT)  that  a  signature  by  the  party  against  whom  the  con- 
tract is  sought  to  be  enforced  is  sufficient. 

§  498.  The  statute  requires  a  signature  and  n(jt  a  suij- 
scription  ;(?/)  therefore  all  that  is  requisite  to  satisfy  the 
statute  as  to  the  signature  is,  that  the  name  be  inserted  ])y 
the  party  in  such  a  manner  as  to  govern  and  autlienticate 
the  entire  instrument.  Accordingly,  a  letter  l)eginning 
"Mr.  Foljambe  presents  his  compliments"  was  held  didy 
signed.(2r)  The  same  was  the  case  where  A.  wrote,  "A.  has 
agreed,"  etc.;{a)  and  where  B.  wrote  "A.  agreed  with  B.," 
etc.  (5)  An  affidavit  made  by  a  person  has  been  also  held 
sufficient,  (c)' 

(w)  See  supra,  §  440.  («)  Ogilvie  v.  Foljambe,  3  Mer.,  53 

{X)  Kgertonv.  Mathews,  G  East,  307;  Allen  (o)  Propert  v.  Parker,  IK.  &   Mt  ,  o:-">. 

V.  Bennet,  3  Taunt..  16i);  Laythoarp  v.  Br>-  See.  also.  Western  v.  KusBell,  i  \  .  &  ii  ,  \>, ; 

ant,  3  Hing.  N.  C,  735.    See.  the  editors'  note  Morieon  v.  Tumour,  18  \  es.,  \,o. 

to  Sweet  V.  Lee,  3  Man.  &  Gr.,  402.  {b)  Bleakley  v.  Smith.  11  Sim.,  I.jO. 

(w)  Per  Lord  Westbury  in  Caton  v.  Caton,  (c)  Barkworth  v.  louug,  4  Drew.,  1. 

L.  K.  2  H.  L  ,  142. 

1  States  in  which  the  writing  must  be  '^subscribed"  by  the  party  to  be  cJiarged-l 
Alabama,  Code  of  1867,  g  1862:  California,  Code,  §  1624;  :Miclii.iran,  Coinp. 
Laws  1871,  ch  166,  i^  8;  Minnesota,  St.  of  1873.  vol.  1,  pp.  691,  692,  ^.^  6.  12; 
New  York,  R.  S.  (6t'h  ed.),  vol.  3,  pp.  141,  142;  Oregon,  Gen.  Laws  1872,  ch.  8, 
§  775;  Wisconsin,  St.  of  1871,  vol.  2,  ch.  10(3,  g  8.  In  New  York,  where  the 
value  of  the  property  is  more  than  fifty  dollars,  the  agreement  must  be  signed 
by  both  parties.     Justice  v.  Long,  2  Rob. ,  333. 

Who  must  sign  the  memorandum.'\  It  depends  entirely  upon  the  language 
of  the  statute:  where  the  same  provides  that  it  "  sliall  be  signed  by  the  parly 
to  be  charged,"  it  is  sufficient  if  the  party  or  his  authorized  agent,  aganist 
■whom  it  is  "sought  to  be  enforced,  has  signe'd  it;  but  in  tho.se  States  where  tlie 
■writing  is  recpured  to  be  "  subscribed  by  the  party  or  his  agent  making  the 
lease  or  sale,"  it  is  indispensable  that  he  should  sign  it.  Ilatton  v.  Gray.  .'»  \  in. 
Abr.,  525;  Buckhou.se  v.  Crosby,  2  E(i.  C"as.  xVbr.,  32;  Egerton  v.  Matlicws,  b 
Ea.st,  307;  Allen  v.  Bennett,  3  Taunt  .  I(i9;  Laythropc  v.  Bryant.  2  Bing. 
^N.  C),  735;  Fararell  v.  Lowther,  18  111.,  252;  Ivorv  v.  Murpliy.  ;J6  Mo..  534: 
Smith  v.  Fleck's  App.,  6!)  Pa.  St  .  474;  Perkins  v.  Adsell.  50  111..  216;  Estes 
V  Furlong  59  id.,  298;  Barstow  v.  Grav.  3  .Me.,  409:  Getehel  v.  .lewett.  4  id  . 
aoO-  ]\I()rin  v.  Martz,  13  Minn.,  198;  l)om,dass  v.  Spears.  2  Nott  A:  McConl, 
207'  Old  Col.  R.  R.  Co.  v.  Evens,  6  Grav,  25;  Fenley  v.  Stewart.  5  Sandf.,  401; 
Justice  v.  Lang,  42  N.  Y.,  493:  S.  C,  52  id.,  323;  AVarrall  v.  Mann.  5  id..  229; 
Bleccker  v.  Franklin.  2  E.  D.  Smith.  393;  Van  Sault  v.  Edwards.  43  Cal..  4.>S; 
Ruttenburudi  v.  :Main,  47  id.,  213;  Lowrv  v.  MehalTy.  10  Watts.  387:  Tripi)  v. 
Bishop  ,56  Pa.  St  424;  Slater  v.  Smith,  117  3Iass  ,  90;  ^\  oodward  v.  Aspm- 
Avall  3' Sandf.,  272;  :McCiea  v.  Purmort.  16  Wend.,  460;  SlurUy  v.  ShcrUy,  7 
Blackf.,  452;  Cabott  v.Cabott,  3  Pick..  83:  Ives  v.  Hazard,  4  K.  1..  14;  1  arish 
V.  Koons,  Parson's  Sel.  E(i.  Cas.,  76. 

The  word -'signed"  in  the  statute.]  The  English  statute  provides  tliat  the 
■writing  .shall  be  "«V//i(rf."  This  languaire  has  been  adopted  by  many  of  the 
States,  viz.:  Arkansas,  St..  ch.  73,  ?;  1;  Illinois.  St.  (ed  of  1874).  vol.  3.  P-  210; 
Iowa.  Code  of  1873.  i?  3663;  Kentucky,  R.  S..  ch.  22.  S;  1 :  Ma.s.s,uhu,setls.  H.  ^.. 
ch  105.  ij  1;  Missouri.  St.  of  1870.  ch.  62,  ^  5;  Nebia.ska.  M.  of  18.3.  ch.  V). 
§  5;  New  Hampshire.  St.  of  1867.  ch.  201.  t^  12:  New  .lerscy.  Nixon  s  l)|i:. 
(4th  ed.)  p.  358.  ii  4:  North  Carolina,  Code.  ch.  50.  ^  U;  Ohio,  R.  b.  of  18.0, 
ch.  47,  i5  5:  Rhode   Island,  St.   of   1872,  ch.  193,  ^  8;  Tennessee,   St.  of   18.1, 


254         FIIY  ox  SPKCirif  rERKOiniANCK  OF  CONTKACTS. 

§  199.  Tlie  siuiiatm-e  must  l)e  tile  actual  writing  of  the 
ii:niie,  or  the  doinu'  of  some  act  intended  by  the  person  to 
bn  equivalent  to  the  .-ictual  signature  of  the  name,  such  as  a 
murk  by  a  marksman.  Therefore  a  letter  beginning  "My 
dear  Kobert,"  and  concluding  Avith  the  words  ''Do  me  the 
justice  to  believe  me  the  most  affectionate  of  mothers,"  was 
held  not  to  be  signed  within  the  statute.  (fZ) 

jj  500.  A  signature  in  pencil  is  not  necessarily  delibera- 
tive, and  may  be  equally  binding  within  the  statute  as  one 
in  ink.(e)  And  even  a  printed  name  may  avail ;  so  that 
where  a  vendor  inserted  in  a  printed  invoice  with  his  name 
on  it  the  name  of  the  x>ni"chaser,  it  was  held  that  there  was 
such  a  ratification  and  adoption  of  the  printed  name  as 
made  it  a  signature,  and  satisfied  the  statute.  (/')  In  like 
manner  a  stamp  may,  no  doubt,  be  used  for  the  purpose  of 
signing.  (.(/)  And  the  writing  of  the  name  of  the  sender  of 
a  telegiam  by  the  telegraph  clerk,  where  the  sender  hcid 
himself  signed  the  instructions  for  the  message,  has  been 
held  to  be  a  good  signature  by  an  agent  in  that  behalf. (^)' 
It  seems,  too,  that  the  setting  down  of  the  initials  may  be  a 
sufficient  signature. (/) 

§  501.  It  cannot  be  denied  that  there  is  some  conflict  of 
authority  on  the  question,  how  far  the  writing  of  his  name 
by  the  jjarty  must  be  with  the  intent  of  signing.     There  is 

(</^  Selby  V.  Sflby,  3  Mer.,  2.  there  given  from  the  stamping  of  Letters 

(e)  Lucas  v.  James,  7  lla.,  410,  419.  Patent  by  King  William  III.                              ■ 

(/)  Schnei'ler  v.  NOrrls,  2  M.  &  S.,  286;  per  (A)  Goodwin  v.  Fran,  is,  L.  R.  5  C  P.,  29.5. 

Lord  Elflon  in  Sauncterson  V.  Jackson,  2  B  &  {i)  .see  Philiimore    v.   Barry.   1   Ca.,  513; 

P.,  239;  Torret  v.  Cripps,  27  W.  R,  706;  48  Jacob  v    Kirk,  2  Moo    &  It.,  221;  Sweet  v. 

L.  J.  Ch..567.  L»'e,  3  Man  &Gr.,  452;  cited  at- Leon.  Vend., 

(g)  Bennett  v.  Rrnmfift,  T,    K.  3  C.  P.,  28.  l;6. 

See,  also,  1  Mad.  Ch.,  376,  rtiul  tue  illustration 

vol.  1.  §  1?5S;  Texfus,  rii.sh.'s  Disj.,  p.  ,  g  3875;  Vermont,  Stat  of  1870,  ch. 
6(),  §  1;  Virginia,  Code  of  1849,  cli  143,  §  1;  West  Virginia,  Code,  ch.  98,  §  1. 
As  to  the  pldce  of  the  xif/wiiure.  it  may  ])e  in  any  part  of  the  writing.  The  name 
of  tlie  party  must  be  so  affixed  as  to  autlientieate  tlie  instrument;  it  must,  how- 
ever, he  acUially  wrUten,  or  something  done  equivalent  thereto.  Hawking  v. 
Chase,  19  Pick.,  oo2;  .McCounell  v.  Brillhart.  17  111  ,  354;  Higdon  v.  Thomas, 
1  Har.  &  Gill,  13'.';  Auder.son  v.  Harrold,  !0  Ohio,  399;  Wright  v.  King,  Har- 
ring.  (Mich.)  St.,  1:.';  Wise  v.  Ray.  3  Green  (Iowa),  430;  Pennymau  v.  Hart- 
sorn.  13  Mass.,  87;  Cabot  v.  Haskins,  3  Pick.,  83. 

T/ie  word  "subscribed"  in  the  statute.'\  In  a  State  wiiere  the  statute  provides 
that  the  writing  shall  be  '"subscribed"  bj'  the  party  to  be  charged,  in  such  case 
the  name  must  be  actually  signed.  There  must  l)e  a  manual  subscription  at  the 
end  of  the  writing  Davis  v.  Shields,  -'(J  Wend.,  341;  rev'g  S.  C,  24  id.,  323; 
James  v.  Patten,  \\  N.  Y.,  9;  rev'g  S.  C  ,  8  Barb.,  344;  DeBerski  v.  Paige.  47  ' 
id.,  172;  Vielie  v.  Osgood,  8  id.,  130. 

'  See,  also,  Cabot  v.  Haskins,  3  Pick.,  88;  C  owrie  v.  Remfry,  10  Jur.,  789. 


STATUTE   OF   FRAUDS,  ETC.  255 

authority  for  the  proposition  that  such  a  writing,  even  with 
a  diflt'erent  intent,  mav  amount  to  a  binding  signature.  "It 
has  been  decided,"  said  Lord  Eklon  (then  Lord  Chief  Jus- 
tice of  the  Court  of  Common  Pleas),  "that  if  a  man  draw 
u^D  an  agreement  in  his  own  hand-writing,  beginning,  'I, 
A.  B.,  agree,  etc'  and  leave  a  place  for  a  signature  at  the 
bottom,  but  never  sign  it,  it  may  be  considered  as  a  note 
or  memorandum  in  waiting  within  the  statute.  And  yet  it 
is  impossible  not  to  see  that  the  insertion  of  the  name  at 
the  beginning  was  not  intended  to  be  a  signature,  and  that 
the  paper  was  meant  to  be  incomijlete  until  it  was  further 
signed  ;"(y)  and  in  a  subsequent  case  his  lordship  said: 
"It  is  true,  that,  where  a  party  or  principal,  or  person  to 
be  bound,  signs  as,  wdiat  he  cannot  be,  a  witness,  he  can- 
not be  understood  to  sign  otherwise  than  as  principal." (/t) 
But  in  other  cases  the  courts  have  had  regavd  to  the  inten- 
tion of  the  writing  alleged  to  operate  as  a  signature.  The 
Court  of  Queen's  Bench  on  this  ground  held  that  a  person 
capable  of  being  a  witness,  and  signing  as  such,  will  not 
be  bound  by  the  instrument  as  a  party,  or  as  agent  of  a 
party  ;(Z)  and  where  the  names  were  written  at  the  begin- 
ning of  a  paper  embodying  a  contract  w^hich  concluded  with 
the  words  "as  witness  our  hands,"  and  no  signatures  fol- 
lowed, it  was  considered  by  the  court  of  common  pleas  not 
to  satisfy  the  statute,  because  the  concluding  w^ords  evi- 
dently show^ed  an  intention  that  the  paper  should  be  signed 
at  the  foot.(?;^) 

§  502.  Some  points,  however,  are  clear.  It  is  clear  that 
the  incidental  introduction  of  his  name  by  the  party  to  be 
charged  for  some  distinct  and  different  purpose  will  not 
do :  as  where  A.  wrote  on  a  memorandum  for  a  lease  the 
words  "the  rent  to  be  paid  to  A.:"  it  was  held  to  be  no 
signature  by  him.(??)' 

(j)  In  Saunderson  v   Jackson,  2  B.  &  P.,  the  court  doubted  the  above  dictum  of  Lord 

239;  ruterrins  apparently  to  Knight  v.  Cucli-  Eldon  in  Coles  v.  Trecothick;  but  see  the 

lord,  1  Esp  ,  IDiKEyre,  C.  J.).  observations  of  Lord  St.  Leonards,  \  end., 

(^■)  Coles  V.   Trecothick,  9  Ves.,  25L     In  116. 
Welford  V.  Beazeley  (3  Atk  ,  503)  It  appears       (m)  Hubert  v.  Treherne,  3  Man.  &  C^r    ,4d, 

that  tne  person  who  subscribed  the  articles  S.  C,  s  n.,  Hubert  v.  Turner.  4  scott  (N.  h.), 

as  witness,  and  was  held  bound  by  the  signa-  486.    Cf  Reg.  v.  Tart,  2b  L.  J.  ^i-  ^l  .  ' '^ 
ture,  was  not  a  party  to  the  articles.  (n)  Stokes  v.  Moore,  1  Cox,  219,  Hawkins 

(I)  Gosbell  V.  ArchtT,  2  A.  &  E.,  500,  where  v.  Holmes,  1  P.  U  ms  ,  ,  -0. 


1  Geary  v.  Physic,  1  B.  &  Cr.,  234;  Draper  v.  Pattina,  2  Spears,  292j 
7.  Clayson,  12  John.,  102;  McDowel  v.  Chambers,  1  Strobh's  Eq.,  317. 


Merritt 


2.")6        FKY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

"I  adhere,''  said  Lord  Selborne  in  tlie  House  of  Lords, (o) 
"to  what  I  said,  when  sitting  in  the  court  of  chancery,  in 
the  case  of  Jervis  v.  Berridge,(^)  that  the  Statute  of  Frauds 
'is  a  weapon  of  defense,  not  offense,'  and  'does  not  make 
any  signed  instrument  a  valid  contract  by  reason  of  the  sig- 
nature, if  it  is  not  such  according  to  the  good  faith  and  real 
intention  of  the  parties.'  " 

§  503.  The  same  principle  was  affirmed  by  the  House  of 
Lords  in  the  case  of  Caton  v.  Caton,(»7)  where  specific  per- 
formance was  sought  of  certain  heads  of  arrangement  set 
out  in  a  written  memorandum  and  there  called  "conditions 
as  a  basis  for  a  marriage  settlement  mutually  agreed  upon 
in  the  event  of  marriage  between  the  under-mentioned  par- 
ties ;"  the  parties  so  referred  to  being  the  plaintiff,  then  a 
widow,  and  the  writer  of  the  memorandum,  who  subse- 
quently becama  her  husband,  and  whose  estate  was  sought 
to  be  charged.  The  document  w^as  not  signed  by  the  writer, 
but  his  name  and  initials  appeared  incidentally  in  several 
parts  of  it;  and  it  was  argued  for  the  plaintiff  that  his 
name  and  initials,  occurring  as  they  did,  below  the  words 
"undermentioned  parties,"  were  sufficiently  connected  with 
those  words  to  enable  the  court  to  treat  the  document  as  a 
memorandum  signed  by  him  within  the  statute.  The  argu- 
ment, however,  was  unsuccessful.  "H,"  said  Lord  West - 
bury,  in  the  course  of  his  speech, (r)  "a  signature  be  found 
in  an  instrument  incidentally  only,  or  having  relation  and 
reference  onl}^  to  a  portion  of  the  instrument,  the  signature 
cannot  have  that  legal  effect  and  force  which  it  must  have 
in  order  to  comply  with  the  statute,  and  to  give  authen- 
ticity to  the  whole  of  the  memorandum." 

§  504.  On  the  other  hand,  it  seems  that  if  there  be  an 
actual  signature  written  with  the  intention  of  signing  or 
authenticating  the  document,  it  is  not  the  less  operative 
because  the  signature  was  attached  for  a  purpose  different 
from  that  of  satisfying  the  statute.  (5)  Thus,  in  a  recent 
case  in  the  Queen' s  Bench  Division,  the  signature  by  the 
chairman  of  a  board  of  directors  in  their  minute  book,  pur- 
suant to  the  67th  section  of  the  companies  act,  1862,  of  a 
resolution  of  the  board  to  the  effect  that  a  particular  draft 

(o)  In  Hu88ey  v.  Horne-Payne,  4  App.,323.       (r)  L.  R.  2  H.  L.,  143. 

<;))  L.  R.  8  <Jh.,  360.  (s)  See,  however,  per  Lord   Selborne   la 

iq)  L.  R.  2  H.  L.,  127.  Hussey  v.  Horne-Payne,  4  App.  C,  323. 


STATUTE   OF  FRAUDS,  ETC.  257 

contract  slionid  be  engrossed  and  executed,  was  held  to 
operate  as  a  sufficient  signature  within  the  statute,  so  as  to 
bind  the  company  to  an  admission  of  the  contract,  notwith- 
standing that  the  chairman' s  signature  had  been  put  to  the 
minute  merely  in  order  to  verify  its  accuracy  and  \^ithout 
any  intention  of  attesting  or  verifying  the  contract.  (^) 
"The  question,"  said  Lush,  J.,  in  delivering  the  judg- 
ment of  the  court,  "is  not  what  its  [the  minute's]  object 
was,  but  whether  it  was  a  written  and  signed  statement  of 
the  contract.  "(i^) 

§  505.  But  in  another  case,  that  of  Eley  v.  The  Positive 
Government  Security  Life  Assurance  Co.,(?))  the  question 
being  whether  a  clause  contained  in  the  articles  of  associa- 
tion of  a  company,  to  the  effect  that  a  particular  person 
should  be  the  solicitor  of  the  company,  was  a  contract  with 
this  person,  the  judges  of  the  exchequer  Division  held  that 
if  it  was  such  a  contract  at  all,  the  signature  affixed  to  the 
articles  having  been  affixed  alio  intuitu  could  not  satisfy'' 
the  statute.  In  the  court  above,  (-w)  the  case  was  disj^osed 
of  irrespective  of  the  statute,  on  the  ground  that  the  arti- 
cles of  association  were  a  matter  between  the  shareholders 
inter  se  or  the  shareholders  and  the  directors,  and  did  not 
create  any  contract  between  the  solicitor  and  the  com- 
pany. 

§  506.  It  is  submitted  that  no  writing  of  a  name  at  the 
beginning,  or  end,  or  in  the  course  of  a  paper,  is  a  signature 
within  the  statute,  unless  the  court  conclude  that  it  was 
there  placed  with  the  intention  of  authenticating  the  entire 
paper  ;  but  that  if  there  be  such  a  writing  of  a  name,  it  is 
immaterial  whether  the  signature  was  attached  with  the  in- 
tention of  evidencing  the  contract  or  for  any  other  purpose 
whatever.  All  motives,  objects  and  purposes  beyond  that 
of  authenticating  the  paper  are  immaterial,  (a;) 

§  507.  Where  the  contract  purports  to  be  signed  by  an 
agent,  it  must  be  alleged  and  proved  by  the  plaintiff  that 
the  person  who  signed  as  agent  was  authorized  to  act  as 
agent  for  the  purpose  of  concluding  a  binding  contract  of 

{t}  Jones  V.  victoria  Graving  Dock  Co.,  2  iw)  1  Ex.  D.,  88.        ,    .     _  „ 

■Q  B.  D  ,314  (X)  See  the  jutlgments  in  Bailey  v.  Sweet- 

(«)  2  Q.  B  D  ,  324.  ingi  9  C  B.  (N.  S.),  843. 
{v)  1  Ex.  D.,  20. 

17 


258        FKY  ox  SPECIFIC  PEKF0K5IANCE  OF  CONTKACTS. 

the  nature  of  tlie  contract  set  up.(2/)'  It  is  not  enougli 
in  tlie  case  of  a  sale  that  the  agent  Avas  appointed  to  nego- 
tiate for  a  sale :  it  is  not  enougli  that  he  was  appointed  as 

(y)  Blore  v.  Sutton,  3  Mer.,'237;  Rldjcway    (Wood,  V.  C);  Rice  v.  O'Connor,  12  Ir.  Ch. 
V.  *Vharton,  3  De  U  M.  &  G.,  U77;  6  H.  L.  C,    R.,  424;  overruling  8.  C,  11  id.,  510. 
238;  Firth  v.  Greenwood,  1  Jur.  (N.  S.).  8u6 

'  Agent's  Hiynaiurc.']  The  ageut  must  be  a  third  person  to  the  agreement. 
One  of  tlie  parties,  even  bj'  consent,  cannot  act  as  the  agent  of  the  other.  The 
same  person  can  act  as  the  agent  of  both  parties.  One  partner  can  sign  for  the 
firm  upon  its  business.  Wright  v.  Danuah,  2  Comp.,  20:J;  Bailey  v.  Ogden,  3 
John..  417;  Lees  v.  Nuttall,  1  R.  &  M  ,  53;  Lowther  v.  Lowther,  13  Ves.,  103; 
Reed  v.  Norris,  2  ]\I.  &  C,  374;  Copeland  v.  Mer.  Ins.  Co.,  6  Pick.,  198;  Reed 
V.  Warner,  5  Paige's  Ch.,  650;  Bartholomew  v.  Leach,  7  Watts,  472;  N.  Y.  C. 
Ins.  Co  V.  Nat'l  Pas.  Ins.  Co.,  20  Darb.,  470;  Button  v.  Williams,  35  Ala., 
503;  Tufts  v.  Plymouth  Gold  Mining  Co.,  14  Allen,  407;  Chase  v.  City  of 
Lowell,  7  Grey,  33:  -Johnson  v.  Trinity  Church  Soc  ,  11  Allen,  123;  Kyle  v. 
Roberts,  6  Leigh,  445. 

Aj)poiniment  of  agent.]  The  agent  must  have  full  power,  by  signing  on  be- 
half of  his  principal,  to  bind  him.  Russell  on  Factors  and  Brokers,  75.  This 
power  must,  however,  be  clearly  evidenced.  Roby  v.  Cossit,  78  111.,  638.  Un- 
less the  statute  particularly  directs  that  it  shall  be  in  some  other  manner,  the 
appointment  of  an  agent  may  be  by  parol.  Weller  v.  Heudon,  5  Vin.  Abr., 
524,  PI.,  45;  Coles  v.^Trecothick,  9  Ves.,  234,  250;  Clinan  v.  Cooke,  1  Sch.  & 
Lef.,  22;  Tolhott  v.  Bowen,  1  A.  K.  Marsh.,  434;  Merritt  v.  Cla-son,  12  John., 
102;  McWhorter  v.  McMahan,  10  Paige's  Ch.,  386;  Irvin  v.  Thompson,  4  Bibb., 
295;  Shaw  V.  Nudd,  8  Pick.,  9;  Hawkins  v.  Chase,  19  id.,  502;  Mortimer  v. 
Cornwell,  1  Hoflfm.  Ch.,  351;  McConnell  v.  Brilhart,  17  111.,  354;  Taylor  v. 
Merrill,  55  111.,  52;  Dykers  v.  Townsend,  24  N.  Y.,  57;  Moody  v.  Smith,  70 
id.,  598.  The  agent's  authority  must  be  in  writing  in  the  following  States: 
California,  Code.  §  1741;  Illinois,  St.  (ed.  of  1874),  vol.  3,  p.  210,  §g  1,  2; 
Michigan,  Com.  Laws  of  1871,  vol.  2,  p  1455,  ch.  166,  §  8;  Nebraska,  Gen.  St., 
1873,  p.  392,  ch.  25 ;  see,  also,  Morgan  v.  Bergen,  3  Neb  ,  309 ;  New  Hamp- 
shire, Gen.  St.,  1867,  ch.  201,  §  12;  Pennsylvania,  Parrish  v.  Koons,  Parson's 
Sel.  Cas..  78;  Home  v.  Fricke,  6  Serg.  &  Rawle,  90;  Twitchell  v.  Philadel- 
phia, 33  Pa.  St.,  212;  New  York,  McComb  v.  Wright,  4  Johus.'s  Ch.,  659.  The 
agent's  authority  will  be  strictly  construed.     Bissell  v.  Terry,  69  111.,  184. 

WJiere  the  agent's  act  is  sanctioned.']  Best,  J.,  said  in  Maclean  v.  Dunn,  4 
Bing.,  722,  "It  has  been  argued  that  the  subsequent  adoption  of  the  contract 
bj'  Dunn,  will  not  take  this  case  out  of  the  operation  of  the  Statute  of  Frauds; 
and  it  has  been  insisted  that  the  agent  should  have  his  authority  at  the  time  the 
contract  is  entered  into.  If  such  had  been  the  intention  of  the  legislature,  it 
would  have  been  expressed  more  clearly.  But  the  statute  only  requires  some 
note  or  memorandum,  in  writing,  to  be  signed  by  the  party  to  be  charged,  or 
his  agent  thereto  lawfully  authorized,  leaving  us  to  the  rules  of  the  common 
law  as  to  the  mode  in  which  the  agent  is  to  receive  his  authority.  Now,  in  all 
other  cases,  a  subsequent  sanction  is  considered  the  same  thing,  in  effect,  as 
assent  at  the  time,  and,  in  my  opinion,  the  .subsequent  sanction  of  a  contract, 
signed  by  an  agent,  takes  it  out  of  the  operation  of  the  statute  more  satisfac- 
torily than  an  authority  given  beforehand.  Where  the  authority  is  given  be- 
forehand, the  party  must  trust  to  his  agent.  If  it  be  given  subsequently  to  the 
contract,  tho-  party  knows  that  all  has  been  done  according  to  his  wishes  " 
See,  also,  Ridgway  v.  Wharton,  3  De  G.  M.  &  G.,  677;  Clark  v.  Riemsdyk,  9 
Cranch,  346 ;  Lawrence  v.  Taylor,  5  Hill,  107. 

The  agent  may  sign  in  his  own  name.]  The  name  of  the  principal  need  not 
appear.  Yerby  v.  Grigsly,  9  Leigii,  387;  Stackpole  v.  Arnold,  11  Mass.,  27; 
Rice  V.  Gove.  22  Pick..  158;  Minard  v.  Mead,  7  Wend.,  68;  Spencer  v.  Field, 
10  id.,  87;  Pentz  v.  Stanton,  id  ,  271,  Ford  v.  Williams,  21  How  ,  287;  Dykers 
V.  Townsend,  24  N.  Y.,  57;  Coleman  v.  First  Nat.  Bank,  53  id.,  3^3;  Ea.stern 
R.  R.  Co.  v.  Benedict,  5  Gray,  506;  Walsh  v.  Barton,  24  Ohio  St.,  28;  White  v. 
Proctor,  4  Taunt.,  209;  Williams  v.  Bacon,  2  Gray,  387. 


STATUTE    OF   FRAUDS,  ETC.  259 

the  person  to  whom  intending  purchasers  were  to  apply  to 
treat  and  see  the  prox^erty  :{z)  and  further,  it  has  been  held 
that  a  written  request  by  the  owner  of  freeholds  to  procure 
a  purchaser  for  them,  aud  to  advertise  them  at  a  certain 
price,  is  no  authority  to  enter  into  an  open  contract  of  sale, 
and  is  probably  no  authority  to  contract  for  sale  at  alL((i) 

§  508.  As  the  statute  does  not  require  an  agent  for  sign- 
ing a  contract  to  be  appointed  in  writing,  the  general  law 
applies  in  such  cases,  and  consequently  the  appointment 
may  be  made  as  well  by  parol  as  by  writing. (&) 

§  oOd.  The  court  may  conclude  in  favor  of  the  agency  in 
any  of  the  following  ways  : 

(1)  The  court  may  come  to  this  conclusion  from  direct 
evidence,  oral  or  written,  of  the  api^ointment ;  or, 

(2)  By  inference  from  the  acts,  letters  or  conduct  of  the 
parties,  or  from  their  relations  to  one  another,  or,  in  short, 
from  any  evidence  legitimately  raising  the  inference  of 
agency.  (,c)' 

(2)  Godwin  v.  Brind,  L.  R.  5  C.  P.,  299  n.  Pilley,  L.  R.  i  Ch.,  548;  Cave  v.  Mackenzie, 

(a)  namerv.  Sharp,  L.  R.  19  Eq.,  Iu8.  46  L.  J.  Ch.,  564. 

(b)  Waller  v  llendou,  5  Vin.  Abr.,  524,  pi.  (c)  Dyas  v.  Cruise,  2  Jon.  &  L.,  461;  Sharp 
45;  coles  v.  Trecothick,  9  Ves.,  234,  250;  v.  Milligan,  22  Beav.,  606;  Pole  v  Leask,  28 
Clinan  v.  Cooke,  1  Sen.  &  Lef.,  22;  Emmer-  id.,  562;  affirmed  in  D.  P.,  33  L.  J.  Gh.,  155; 
son  V.  Heelis,  2  Taunt  ,3S;  per  Timlal,  C.  J.,  Rossiter  v.  Miller,  3  App.  C,  1124 

in  Acebal  v.  Levy,  10  Bing  ,  378;  Heard  v. 


1  This  principle  lias  been  followed  in  numerous  cases  in  this  country.  Yerley 
V.  Grigsby,  9  Leigh,  387;  Irvine  v.  Thompson,  4  Bibb.,  295.  And  it  has  long 
been  the  "law  of  England.  In  Coles  v.  Trecothick,  9  Ves.,  250,  Lord  Eldon 
distinctly  said  that  an  agent  need  not  be  authorized  in  writing,  in  contracts  re- 
lating to  real  estate.  Words  to  the  same  effect  are  used  in  Clinan  v.  Cooke,  1 
Sch.^fc  Lefr.,  81;  aud  it  can  admit  of  little  doubt,  either  at  law  or  in  equity. 
It  seems  clear  that  where  a  statute,  such  as  the  statute  of  frauds,  requires  the 
instrument  to  be  in  writing  in  order  to  bind  the  party,  he  may,  without  writing, 
authorize  an  agent  to  sign'it  in  his  behalf,  unless  the  statute  positively  requires 
that  the  authority  should  be  in  writing.  Story  on  Agency,  ^  50;  2  Kent  (5th 
ed.),  613,  614;  Lhitty  on  Contracts  (6th  Am.  ed.),  210,  211,  note  and  cases 
cited  Shaw  v.  Nudd,  8  Pick.,  9;  Yerley  v.  Grigsby,  9  Leigh,  387;  Turnlndl 
V.  Trout,  1  Hall,  3^6;  Ewing  v.  Tees,  1  Binn.,  46U;  Talbot  v.  Boweu,  1  Marsh. 
(Kv  )  43(1;  1  Sug.  Yen.  and  Purch  (6th  Am.  ed.),  132,  186;  Mortimer  v.  Corn- 
Avell  1  HofE.  Cli.,  351;  Mortlock  v.  Buller,  10  Yes.,  311;  Johnson  v.  Dodge,  17 
111  .  '433.  In  Worrall  v.  Dunn.  1  Seld.,  229,  it  is  decided  by  the  Court  of  Ap- 
peals that,  where  an  agent,  authorized  by  parol  to  contract  for  his  principal, 
e.xecutes  an  atireemeut,  in  the  name  of  the  principal,  nnckr  seal,  such  agree- 
ment is  binding  on  the  principal  as  a  simple  contract.  That  a  contract  for  the 
sale  of  lands  need  not  be  under  seal,  but  merely  in  writing;  and  th)*t  the 
authority  of  the  agent,  to  bind  his  principal,  in  case  of  this  kind,  may  well  be 
conferred  by  parol.  And  in  McWhorter  v.  jMcMahan,  10  Paige,  386,  a  case 
decided  bv  Walworth,  Ch.,  it  is  said,  "that  it  is  only  necessary  that  such  agent 
be  lawfully  authorized  to  execute  the  contract;  an  authority  in  writing,  for  that 
purpose  is  not  required  bv  the  Statute  of  Frauds.  An  authority  to  convey 
lands  is  required  by  the  statute  to  be  in  writing,  but  clearly  not  of  an  authority 
to  ccmtract.  to  convey."  Lawrence  v.  Taylor,  5  Hill,  107.  But  whether  a  con- 
tract sio-ned  by  one' partner,  in  behalf  of  himself  and  copartners,  for  the  sale 


260        FRY  ON  SPECIFIC  PEKFORMANr  K  OF  CONTRACTS. 

(3)  An  alleged  principal,  though  he  may  in  fact  have 
given  no  authority  to  the  alleged  agent,  may  l)\'  representa- 
tions which  he  has  made  to  the  other  party,  or  by  inducing 


of  real  estate,  can  be  enforced  against  the  purchaser,  under  the  Revised  Statutes 
of  New  York,  was  thought  in  More  v.  Sraedburgh,  8  Paige,  600,  to  be  ques- 
tionable. A  reference  to  the  statute,  however,  will  show  that  the  agreement 
or  memoraTidum  must  be  subscribed  by  the  party  by  whom  the  sale  is  made; 
that  in  McWhorter  v.  McMahan — the  property  sold  belonging  to  two  partners — 
the  chancellor  was  of  opinion  that  the  contract,  to  be  valid,  must  be  signed  by 
both  of  them,  or  by  one  as  agent.  The  rule  in  New  York  is  laid  down  in  the 
case  of  Worral  v.  Munn.  5  N.  Y.,  239,  by  Paige,  J.:  "It  is  a  maxim  of  the 
common  law,"  says  the  learned  justice,  "that  an  authority  to  execute  a  deed 
or  instrimien't  under  seal,  must  be  conferred  by  an  instrument  of  equal  dignity 
and  solemnity;  that  is,  by  one  under  seal.  This  rule  is  purely  technical.  A 
disposition  has  been  manifested  by  most  of  the  American  courts  to  relax  its 
strictness,  especially  in  its  application  to  partnership  and  commercial  transac- 
tions I  think  the  doctrine,  as  it  now  exists,  may  be  stat(!d  as  follows,  viz. :  If 
a  conveyance  or  any  act  is  required  to  be  by  deed,  the  autliority  of  the  attorney 
or  a"-ent  to  execute" it  must  be  conferred  by  deed;  but  if  the  instrument  or  act 
wouTd  be  effectual  without  a  seal,  the  addition  of  a  seal  will  not  render  an 
authority  under  seal  necessary;  and  if  executed  under  a  parol  authority,  or 
subsequently  ratified  or  adopted  by  parol,  the  instrument  or  act  will  be  valid 
and  binding  on  the  principal.  It  is  said  that  the  rule  as  thus  relaxed  is  con- 
fined in  its  application  to  transactions  between  partners.  But  it  seems  to  me 
that  a  distinction  between  partners  and  other  persons  in  the  application  of  the 
rule,  as  relaxed  and  qualified  by  recent  decisions,  stands  upon  no  solid  founda- 
tion'of  reason  or  principle.  The  whole  authority  of  a  partner  to  act  for  his 
copartners,  and  to  bind  them  and  their  interest  in  the  copartnership  property, 
is  founded  upon  the  common-law  doctrine  of  agency.  So  far  as  he  acts  for 
his  partners  he  is  an  agent. "  As  to  whether  the  signing  of  the  name  of  the 
grantor  to  a  deed,  by  a  third  person,  in  the  presence,  and  by  the  express  direc- 
tion of  such  grantor,  is  a  sufficient  signature  under  the  Statute  of  Frauds  to 
convey  land — a  question  which  arose  in  Wallace  v.  McCullough,  1  Rich.  Ch., 
426— there  have  existed  different  opinions,  giving  rise  to  not  a  little  perplexity. 
"This  point,"  says  Mr.  Parsons,  in  a  learned  note  on  the  subject,  "upon  which 
there  seems  to  be  no  express  decision,  arose  in  the  recent  case  of  Wood  v.  Good- 
ridge,  6  Cush.,  117.  This  was  the  case  of  a  mortgage  deed  and  note  made  under 
a  power  of  attorney  under  seal,  by  simply  signing  the  name  of  the  principal 
opposite  to  a  seal,  in  the  case  of  the  deed,  and,  in  the  case  of  the  note,  by  sim- 
ply writing  the  principal's  name  at  the  foot.  It  was  not  necessary  to  decide 
the  point,  the  court  being  of  the  opinion  that  the  power,  though  very  general 
in  its  terms,  did  not  confer  authority  to  mortgage,  nor  to  borrow  money  and 
bind  the  principal  by  a  promissory  note.  But  the  question  of  the  manner  of 
execution  was  much  considered,  and  the  court,  per  Fletcher,  .1.,  signified  an 
inclination  to  hold,  that  where  an  attorney  signs  the  name  of  Iiis  principal 
to  an  instrument  which  contains  nothing  to  indicate  that  it  is  executed  by  at- 
torney, and  without  adding  his  own  signature  as  such,  it  is  not  a  valid  execu- 
tion. In  another  case  a  deed  was  signed  in  the  presence  and  by  the  direction 
of  P.  G.  (and  in  the  presence  of  an  attesting  witness)  thus  :  "  P.  G.  by  M. 
G.  G."  It  was  objected  that  M.  G.  G.,  signing  in  that  manner  for  the  princi- 
pal, should  have  had  a  power  under  seal;  but  the  deed  was  held  valid.  Gard- 
ner V.  Gardner.  5  Cush.,  483.  In  delivering  the  judgment  in  this  case,  Shaw, 
C.  J.,  said  :  "The  name  being  written  by  another  band,  in  the  presence  of  the 
grantor,  and  at  her  request,  is  her  act.  The  disposing  capacity,  the  act  of 
mind,  which  are  the  essential  and  efficient  ingredients  of  the  deed,  are  hers;  and 
she  merely  uses  the  hand  of  another,  through  incapacity  or  weakness,  instead  of 
her  own,  to  do  the  physical  act  of  making  a  written  sign.  Whereas,  in  exe- 
cuting a  deed  by  attorney,  the  disposing  power,  though  delegated,  is  with  the 
attorney,  and  the  deed  takes  effect  from  his  act,  and  therefore  the  power  is  to  be 
strictly  examined  and  construed."    Perhaps  it  will  still  be  regarded  as  an  open 


STATUTE   OF   FRAUDS,  ETC.  261 

him  to  lay  out  money  on  the  faith  of  the  alleged  agency,  be 
estopped  from  denying  the  agency.  (^Z) 

(4)  Ratification  may  take  the  place  of  agency.  Here  the 
maxim  applies,  omnls  ratUtahitlo  retrotrahitur  et  mandato 
CBqulparatur,  and,  therefore,  the  subsequent  ratification  of 
a  contract,  entered  into  by  a  person  then  unauthorized  as 
agent,  takes  it  out  of  the  statute  ;(e)  and  this  ratification 
need  not  be  by  any  express  act ;  it  is  enough  if  the  party 
whose  authority  is  required  take  the  benefit  of  the  contract, 
or  even  if,  with  a  full  knowledge  of  it,  he  passively  acqui- 
esce in  it  for  a  length  of  time  longer  than  that  reasonably 
to  be  allowed  for  the  expression  of  dissent.  (/)  But  it  will 
not  be  implied  from  vague  expressions  to  a  third  person.  (^)' 

(d)  Ridgway  v.  Wharton,  6  H.  L.  C,  238,  (/)  Rigg  v  Strong,  3  Sm.  &  G.,  592;  aflfd 
297;  per  Lord  Oranwortb  in  Ramsden  v.  6\V.  R.,536;  Rice  v.  O'Connor,  12  Ir.  Ch.  R., 
Dyson,  L.  R.  1  H.  L.,  158.  424,  434.      And  see  per  Lord  Hatherley  in 

(e)  Maclean  v.  Dunn,  4  Bing.,  72i;  Ridgway  Phillips  v.  Homfray,  L.  R.  6  Ch.,  778 

V.  Wharton,  6  H.  L.  C  ,  238,  296.    See,  too,        (g)  Ridgway  v.  Wharton,  6  H.  L.  C,  238. 
Fitzmaurlce  v.  Bayley,  6  El.  &  B1.,86S;  8  id., 
664;  9H.  L.  C.,78. 

question  whether  the  simple  signing  of  the  principal's  name,  without  evidence 
on  the  face  of  the  instrument"  that  the  execution  is  by  an  agent,  may  not  be 
sufficient.  From  a  passage  from  Dixon  on  Title  Deeds,  vol.  3,  p.  odi,  it  may 
be  inferred  that  the  author's  view  is  similar  to  tliat  now  taken  by  the  supreme 
court  of  Massachusetts.  On  the  other  hand,  the  books  contain  numerous  iiiti 
raations  that  it  has  not  generally  been  supposed  heretofore  that  any  other  form 
is  necessary  to  the  valid  execution  of  a  deed  by  attorney  than  is  requisite  when 
the  principal  makes  a  deed  in  his  proper  person.  See  1  Prest.  Abstr.  ('id  ed  ), 
298,  294;  Smith's  Merc.  Law,  B.  1,  ch.  5,  §  4;  Wilks  v.  Back.  2  East,  142.  145; 
Elliot  V.  Davis,  2  B.  &  P.,  338;  Bac.  Abr.  Leases,  §  10;  also  Hansom  v  Rowe, 
6  Fost.,  327.  It  seems  to  be  the  better  opinion,  that  ever  since  the  Statute  of 
Frauds,  a  signing  is  not  essential  to  a  deed.  Aveline  v.  Whisson,  4  M.  &  Gr., 
801;  Cherry  V.  Heuning,  4  Excheq.,  631;  Shepp.  Touch,  by  Preston,  oii.  note. 
If  this  be  so,  it  may  be  considered  going  very  far,  to  hold  that  the  addition  of 
the  name  of  the  principal,  by  the  hand  of  an  authorized  agent,  invalidates  an 
instrument  which  would  have  been  perfectly  good  without  any  signature  at  all. 
In  some  States,  indeed,  the  statutes  of  conveyances  modify  the  common  law 
in  this  particular,  and  require  signing  as  well  as  the  affixing  of  a  seal." 

1  The  case  of  Montacute  v.  Maxwell,  1  P.  Wms.,  618,  is  an  important  case  on 
this  subject.  The  plaintiff  brought  a  bill  against  the  defendant,  her  husband, 
setting  forth  that  the  defendant,  laef ore  her  intermarriage  with  him,  promised 
that  she  could  enjoy  all  her  own  estate  to  her  separate  use;  that  he  had  agreed 
to  execute  writings  to  that  effect,  and  had  instructed  counsel  to  draw  such 
writings,  and  that  when  they  were  to  be  married,  the  writings  not  being  per- 
fected, the  defendant  desired  that  this  might  not  delay  the  match,  because,  his 
friends  being  there,  it  inight  shame  him;  but  engaged  tbat,  upon  his  honor, 
she  should  have  the  same"  advantage  of  an  agreement  as  if  it  were  in  writing, 
drawn  in  form,  by  counsel,  and  executed ;  whereupon  the  marriage  took  place. 
To  this  bill  the  defendant  pleaded  the  statute  of  frauds.  And  the  Lord  Chan- 
cellor said  :  "  In  cases  of  fraud,  equity  should  relieve,  even  against  the  words  of 
the  statute,  as  if  one  agreement  in  writing  should  be  proposed  and  drawn,  and 
another  fraudulently  and  secretly  brought  in  and  executed  in  lieu  of  the  former, 
in  this  or  such  Uke  cases  of  fraud,  equity  would  relieve;  but  where  there  is  no 
fraud,  only  reiving  upon  the  honor,  word  or  promise  of  the  defendant,  the 
statute  making'these  promises  void,  equity  will  not  interfere;  nor  were  the  in- 


262        VKY  ox  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

§.110.  For  a  valid  ratification  it  is  necessarj-  that  the 
person  wlio  ratifies  the  contract  should  have  been  in  exist- 
ence at  its  date  ;{7i)  and  further,  that  he  should  be  the  per- 
son in  whose  name  the  agent  has  professed  to  act.(/)  Thus, 
where  the  pretended  agent  professed  to  contract  in  waiting 
on  behalf  of  a  married  woman,  it  was  held  that  the  husband 
could  not  ratify  the  contract,  as  he  had  not  been  named  as 
a  principal,  (y) 

§  51 1.  It  is  now  clearly  decided  that,  at  sales  by  auction, 
auctioneers  are  agents  of  the  purchaser  as  well  as  of  the 
vendor. (A-)  This  conclusion  seems  to  have  been  arrived  at 
from  the  necessity  of  the  case,  and  the  peculiar  nature  of 
the  mode  of  sale.(Z)  "  The  nature  of  the  proceeding  by  auc- 
tion," said  Lord  Langdale,  M.  R.,(?/i)  "  the  bidding  for  the 
purpose  of  making  the  purchase,  the  necessity  of  making  a 
statement  of  the  bidding,  the  direction  to  the  auctioneer  to 
write  down  the  bidding,  which  is  perhaps  involved  in  the 
very  process  of  bidding,  and  some  other  circumstances 
afford  intelligible  ground  for  the  decision  in  Emmerson  v. 
Heelis,(7?.)  and  the  approbation  whicli  has  since  been  be- 
stowed upon  it."  Where  this  necessity  does  not  exist,  as 
in  a  subsequent  purchase  in  private  from  the  auctioneer,  no 
such  agency  arises,  (o)'     But  where,  after  an  unsuccessful 

(h)  Kelner  v.  Baxter,  L.  R.  2  C.  P..  174;  worthy  v.  Schofield,  2  B  &  C.,945;  Edfi;ell  v. 

SCf.tt  V.  Lord  Ebury,  id.,  255;   Molhado  v.  Day,  L.  R  1  C   P..  SO,  84;  cf.  Bartlett  v.  Pur- 

Porto  Allegre  Railway  Co.,  L.  R.  9  C. P., 50.3.  nell.  4  A.  &  E  ,  792. 

(I)  Wilson  V.  Tumman,  6  Man.  &  Gr..  236;  (l)  (iosbell  v.  Archer,  2  A.  &  E.,  500;  Earl 

per  Parke,  J.,  in  Vere  v.  Ashby,  10  B.  &  C  ,  of  Glengal  v.  Barnard.  1  Ke  ,  7S8 ;  affirmed  in 

298.  D.  P.  as  Lord  Glengal  v.  Thynne,  St.  Leon. 

(i)  Saunderson  v.  Griffiths,  5  B.  &  C,  909;  Law  of  Prop..  56. 

and  see  Brook  v.  Hook,  L  R  6  Ex.,  89.  <m)  In  Earl  of  Glengal  v.  Barnard,  1  Ke., 

(k)  Emmerson  v.Heelis, 2 Taunt., 38;  White  788 

V.  Proctor,  4  id.,  209;  Kemeys  v.  Proctor,  3  (n)  2  Taunt.,  38. 

V.  &  B,  57;  S.  C,  1  J.  &  ^.,3.50;  Buckmaster  (o)  Mews  v.  Carr,  1  H.  &  N  ,  484. 
V.  Harrop,  7  Ves.,  341 ;  S.  C,  13  id  ,  456;  Ken- 


structions  given  to  counsel,  for  the  preparing  of  writings,  material,  since,  after 
tliev  were  drawn  and  engrossed,  the  parties  might  refuse  to  execute  them." 
But  an  entirely  different  view  of  a  very  similar  case,  and  more  in  conformity 
with  Dundass  v.  Dutens,  was  expressed,  in  this  country,  by  Mr.  Justice  Story, 
in  Jenkins  v.  Eldridge,  3  Story,  291.  There,  it  was  said  that,  where  instruc- 
tions are  given  and  preparations  made  f<n-  marriage  settlements,  and  the  woman 
is  persuaded  by  the  man  to  marry,  trusting  tj  his  verbal  promi.se  to  complete 
them,  equity  ought  to  relieve  and  compel  performance. 

'  And  this  note  or  entry  on  his  account  of  sales,  if  the  sale,  the  price,  and 
the  purchaser's  name,  are'  contained  in  it,  is  a  sufBcicut  note  in  writing  of  the 
agreement,  signed  by  a  person  thereto  authorized  by  the  purchaser,  within  the 
meaning  of  the  Statute  of  Fraiids.  Smith  v.  Jones,  7  Leigh,  165;  Episcopal 
Church  of  Macon  v.  Wiley,  2  Hill.  Ch.,  584;  M'Comb  v.  Wright,  4  John.  Ch., 
659.  And  signing  by  the  purchaser,  in  person,  at  an  auction  sale,  is  not  requi- 
site. Bleeckcr  v.  Franklin,  2  E  D.  Smith,  93.  But  to  render  an  auctioneer's 
entry  of  sale  at  auction  a  compliance  with  the  Statute  of  Frauds,  he  must  be  an 


STATUTE   OF   FEAUDS,  ETC.  263 

sale  by  auction,  but  before  the  auctioneer  had  left  the  ros- 
trum, a  iDurchaser  ascertained  from  the  auctioneer's  clerk 
the  amount  of  the  reserved  bidding,  and  agreed  to  take  the 
propert}^  at  that  jDrice,  and  signed  a  bidding  paper  for  it, 
but  subsequently  denied  the  authority  of  the  riuctioueer  to 
act  as  the  vendors'  agent,  it  was  held  impossible  for  him 
to  contend  that  the  sale  ought  not  to  be  treated  as  one  by 
auction.  (^)* 

{p)  Else  V.  Barnard,  28  Beav.,  228. 


authorized  public  auctioneer.  The  validity  of  an  entry  in  an  auctioneer's  book 
applies  equally  to  sales  of  real  estate  and  personal  property.  Anderson  v.  Chick, 
1  Bailey's  Ch.,  118.  Thus,  in  Bailey  v.  Leroy,  3  Edw.  Ch.,  514,  a  person  pur- 
chased by  parol,  of  the  successful  bidder  at  an  auction  sale  of  real  estate,  his 
right  under  the  bid,  the  terms  of  which  were  evidenced  by  the  auctioneer's 
certificate,  and  upon  a  bill  by  the  assignee  for  a  specific  performance  of  the 
contract,  a  plea  of  the  statute  of  frauds  was  overruled.  In  New  York,  the 
validity  of  auction  sales  is  regulated  by  statute.  And  "whenever  goods  shall 
be  sold  at  public  auction,  and  the  auctioneer  shall,  at  the  time  of  sale,  enter,  in 
a  sale  book,  a  memorandum  specifying  the  nature  and  price  of  the  property 
sold,  the  terms  of  the  sale,  the  name  of  the  purchaser,  and  the  name  of  the 
person  on  whose  account  the  sale  is  made,  such  memorandum  shall  be  deemed 
a  note  of  the  contract  of  sale,  within  the  meaning  of  the  last  section."  Rev. 
Stat.,  pt.  2,  ch.  9,  tit.  2,  §  4.  The  statute  requiring  that  these  contracts  should 
be  actually  signed  by  the  party  to  be  charged  therewith,  or  by  his  agent,  a 
written  memorandum  of  the  terms  of  a  sale  made  by  a  broker  employed  by 
both  parties,  although  containing  the  names  of  both  parties  to  the  sale,  in  the 
body  of  the  memorandum,  was  held  to  be  insuflicient  under  the  statute.  Den- 
nison  v.  Carrahan,  1  E.  D.  Smith  (N.  Y.),  144.  A  commissioner  appointed  by 
the  court  is  likewise  the  agent  of  both  parties;  and  a  memorandum  made  by 
him  of  the  sale  is  a  sufficient  memorandum  in  writing.  Jenkins  v.  Hogg,  3 
Const  Rep.,  821.  The  same  remark  applies  also  to  masters  in  chancery.  Gor- 
don V.  Sims,  2  McCord,  154. 

1  Public  sale;  signature  by  auctiotieer.]  Story,  J.,  in  Smith  v.  Arnold,  5 
Mason,  414,  said  :  "It  appears  to  me,  speaking  with  all  due  respect,  to  have 
done  much  to  destroy  the  salutary  operation  of  the  Statute  of  Frauds.  B}'  the 
common  law,  if  an  agent  is  to  execute  a  deed  for  his  principal,  his  authority 
must  be  of  a  high  nature.  It  must  be  by  deed.  By  analogy,  it  would  have 
seemed  convenient,  if  not  indispensable,  to  have  held  that  where  the  statute  to 
prevent  frauds  and  perjuries  required  a  contract  to  be  in  writing,  if  executed 
by  an  agent  his  authorit}^  should  be  in  writing  also.  That  the  auctioneer 
is  agent"  of  the  seller  is'  clear.  That  he  is  also  the  agent  of  the  buyer 
is  not  very  clear,  and  is  a  conclusion  founded  on  somewhat  artificial  rea- 
soning. But  the  doctrine  is  now  established,  and  the  best  reason  in  sup- 
port of  it  is,  that  he  is  deemed  a  disinterested  person,  having  no_ motive  to 
mistate  the  bargain,  and  enjoving  equally  the  confidence  of  the  parties."  See, 
also,  ]\Iacomb  v.  Wright,  4  John.'s  Ch.,  659;  Hinds  v.  Whitehouse,  7  East,  558; 
Shansfield  v.  .Johnson,  1  Esp.,  101;  Walker  v.  Constable,  1  Bos.  &  Bell,  y06; 
Cordon  v.  Sims,  2  JlcCord's  Ch.,  164;  Adams  v.  Mc.Vlillin.  7  Portor,  78;  An- 
derson V.  Chick,  Bailey's  Eq.,  118;  Endicot  v.  Perry,  14  Sm.  ct  Marsh.,  157; 
White  V.  Crew,  16  Ga.,  41G;  White  v.  Watkins,  23  Me.,  423;  Simon  v.  .Motives, 
3  Burr.,  1921;  Gill  v.  Bicknell,  3  Cush.,  358;  Hart  v.  Woods,  7  Blackf.,  568. 

The  memorandum  made  by  the  aucUoneer  must,  in  plain  terms,  refer  to  the 
conditions  of  the  sale,  and  must  state  all  the  material  terms  of  the  agreement. 
Morton  v.  Dean,  13  Mete,  385;  Kenworthv  v.  Schofield,  2  B.  &  C,  945; 
Nichols  V.  Johnson,  10  Conn.,  193;  Davis  v.  Shields,  36  Wend..  341;  :Meyer  v. 
Adrian,  77  N.  C,  83 ;  Pinckney  v.  Hagadorn,  1  Duer,  89. 


264        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

§  512.  In  order  to  prove  that  the  auctioneer  on  a  sale  by- 
auction  was  the  vendor's  agent,  it  is  only  necessary  to  prove 
by  whose  instructions  he  acted  \{q)  and  it  seems  that  after 
the  lianmier  has  fallen  the  vendor  is  not  entitled  to  revoke 
the  authority  of  the  auctioneer,  although,  at  the  time 
when  the  vendor  seeks  to  revoke  it,  no  written  contract  has 
been  signed,  (r) 

§  513.  As  an  agent  may  not,  without  express  authority, 
delegate  his  authority  to  another,  an  auctioneer  cannot 
without  permission  appoint  another  to  conduct  the  sale,(.s) 
and,  for  the  same  reason,  the  clerks  of  agents  are  not  agents 
for  the  principal,  unless  the  principal  has  assented  to  their 
acting  as  sach.(^)  Tiie  auctioneer's  clerk  at  an  auction  will 
be  held  to  have  been  the  purchaser's  agent  for  the  purpose 
of  entering  his  name  at  the  time  of  the  sale  in  a  book,(z/)  if 
it  can  be  shown  that  the  purchaser,  by  word,  sign  or  other- 
wise, authorized  the  making  of  such  entry  :  and  even  in  the 
absence  of  any  -pvoot  of  such  authority,  there  appears  to  be 
general  custom  investing  the  auctioneer's  clerk  with  it.(«)' 

§  514.  In  one  case,  a  solicitor  employed  in  a  marriage- 
treaty,  who  drew  up  a  minute  of  the  arrangement  came  to 
at  an  interview,  was  held  not  to  be  an  agent  lawfully  author- 
ized to  bind  the  parties,  so  as  to  make  the  insertion  of  their 
names  in  the  minute  a  signature  within  the  statute ;('?«)  nor 
has  a  solicitor,  instructed  on  behalf  of  one  of  the  parties  to 
prepare  a  formal  contract,  authority  to  act  as  his  client's 

iq)  Consider  Pike  v.  Wilson,  IJur.  (^.  S.).  see  Rishtonv.  Whatmore,8Ch.D.,4G7;  infra, 

59.  S  525. 

(r)  Day  V.  Wells,  30Beav.,  220.   See  further,  (v)  Bird  v.  Boulter,  4  B.  &  Ad.,  443;  Pierce 

as  to  the  auctioneer's  authority,  McMullen  v.  v.  Corf,  L.  R.  9  Q.  B  ,  210. 

Helberg,  I.  R.  6  C.  L.,  465;  Brett  v.  Clowser,  (tv)  Eari  of  Glengal  v.  Barnard,  1  Ke.,  769; 

5  C.  P.  D. ,  386  affirmed  in  D.  P.  as  Lord  Glengal  v.  Thynne, 

(*)  Dart,  Vend.  (5th  ed.),  178.  fet.  Leon,  Law  of  Prop.,  56.    See,  also,  De 

(t)  Coles  V    Treoothick,  9  Ves.,  234.    Of.  Biel  v.  Thomson,  3  Beav  ,  469;  Hammersley 

Bird  V.  Boulter,  4  B.  &  Ad.,  443.  v.  De  Biel,  12  CI.  &  Fin.,  45. 

(m)  As  to  what  such  entries  must  contain, 


^  An  auctioneer's  clerk  may  thus  enter  the  names  of  the  purchasers  in  a  book, 
and  it  is  immaterial  whether  he  be  appointed  by  the  agent  of  the  vendor  or  the 
auctioneer  to  make  the  sale.     Smith  v.  Jones,  7  Leigh,  165. 

Andioncefs  clerk,  signature  by. ^  An  auctioneer's  clerk  cannot  sign  for  his 
employer.  This  was  Held  in  a  case  where  the  clerk  signed,  not  having  specially 
obtained  authority,  and  there  was  no  proof  of  assent.  Meadows  v.  Meadows, 
3  McCord,  458;  Enty  v.  Mills,  1  McMull.,  453;  Cristie  v.  Simpson,  1  Rich., 
407;  Carmack  v.  Masterson,  3  Stew.  &  Port.,  411 ;  Rice  v.  Durin,  m  Barb.,  G47, 
Where  the  auctioneer  has  made  a  proper  entry  on  the  day  of  sale,  and  the  same 
has  been  adjourned,  he  need  not  repeat  the  entry  on  the  adjourned  day.  Price 
V.  Durrin,  SG  Barb.,  647. 


STATUTE    OF   FRAUDS,  ETC.  2G5 

agent  for  the  purpose  of  signing  any  memorandum  or  note 
of  the  contract  within  the  statute,  (a?) 

§  515.  A  telegraph  clerk  despatching  a  message  from 
written  instructions  of  the  party  sought  to  be  charged  has 
been  held  the  agent  of  such  party  for  the  purpose  of  signing 
his  name  in  the  telegraphic  message.  (?/) 

§  516.  The  authority  of  an  agent  may  be  revoked  at  any 
time  before  the  authority  is  acted  ui)on,  and  such  revoca- 
tion may  be  proved  by  parol. (2:)  But  where  the  agent  has 
been  habitually  employed  in  that  capacity,  and  so  held  out 
by  the  principal,  the  latter  will  be  bound  by  his  acts  if 
within  the  scope  of  his  former  authority,  until  reasonable 
notice  has  been  given  of  its  revocation,  (a) 

§  517.  The  death  of  the  principal  works  an  instant  revo- 
cation of  an  agent's  authority,  and  any  contract  made  by  the 
agent  after,  though  without  notice  of  the  death,  is  void. (5) 

§  518.  The  question  of  agency  is  one  of  fact,  and  comes 
accordingly  under  the  rules  now  applicable  to  such  ques- 
tions, (c)  In  former  times  the  court  of  chancery  has  directed 
an  issue  to  try  the  question  of  agency,  {dy 

§  519.  It  follows  from  what  has  already  been  said  that 
letters  passing  between  the  parties  themselves,  or  between 
the  party  sought  to  be  charged  and  some  third  party,  even 
including  amongst  such  third  x)arties  the  writer's  own  agent, 
may  in  many  cases  be  used  for  the  purpose  of  completing  or 
supplying  such  evidence  of  the  contract  as  the  statute  re- 
quires. It  may  be  convenient  to  consider  these  cases  under 
the  following  heads,  viz.:  (1)  where  there  is  an  unsigned 
writing  containing  all  the  terms  of  the  contract,  and  the  let- 
ters are  adduced  as  incorj)orating  that  Avriting,  and  furnish- 

(X)  Smith  V.  Webster,  3  Ch.  D.,  49.  See,  too,  even  to  persons  who  have  no  notice  or  means 

Forster  v.  Rowland,  7  H.  &  N.,  103.    Distln-  of  knowing  of  the  revocation;  seeFucntes  v. 

guish  Jolliflfe  V.  Blumberg,  18  W   R.,  784.  Montis,  L.  R.  3  C.  P.,  268;  S.  C,  L.  R.  4  C. 

(y)  Godwin  v.  Francis,  L.  R  5  0.  P.,  295.  P..  93 

(2)  Vynlor's  Case,  8  Co.,  83;|  Manser  v.  Back,  (b)  Watson  v.  King,  4  Camp.,  272;  Smout  v. 

6  Ha,,  443.  Ilbery,  10  M.  &  W.,  1;  Carr  v.  Livingston, 35 

(a)  Trueman  v.  Loder,  11  .\.  &  E.,  589;  E.x  Beav.,  41. 

parte  Swan,  7  0.  B.  (N.  S.).  400,  432      Kut  an  (c)  See  Ord.  XXXVI,  rr.  3,  6.  26,  27. 

agent  for  sale  of  goods  whose  authority  has  (d)  Howard  v.  Braithwaite,  1  V.  &  B.,  202. 
been  revoked  cannot  validly  pledge  the  goods 

'  An  agreement  may,  of  course,  be  signed  by  an  agent ;  but,  not  only  must 
such  agent  be  authorized  to  complete  the  transaction,  it  must  likewise  be  evi- 
dent either  that  his  general  powers  are  amply  sufficient,  or  that  he  was  especially 
appointed  to  effect  the  contract  in  question ;  and  where  the  manner  of  execution 
has  been  prescribed,  he  is  as  much  incapacitated  from  deviating  from  the  terms 
of  his  authority,  as  he  is  of  transcending  the  limits  assigned  him.  Fraser  v. 
McPherson,  3  Dessau.,  393;  Mackay  v.  Moore,  Dudley,  94. 


26G         FIIY  ox  SPKCIFIC  PEKFORMAXCE  OF  CONTRACTS, 

in,2,-  thp  signaturo  of  one  or  both  of  the  parties  ;  (2)  where  the 
principal  writing  is  incomplete  in  one  or  more  of  its  terms, 
and  the  letters  are  referred  to  to  supplement  the  defect ;  and 
(3)  where  they  are  adduced  as  themselves  constituting  the 
contract  and  the  written  evidence  of  it.' 

ij  otJO.  (1)  In  order  to  make  a  contract  binding  under  the 
Statute  of  Frauds,  it  is  not  necessary  that  it  should  be  all 
contained  in  one  paper,  signed  by  the  party  to  be  charged ; 
but  the  terms  of  the  contract  may  be  contained  in  one  paper, 
and  the  signature  may  be  found  in  some  other  paper,  pro- 
vided that  such  second  paper  refer  to  the  paper  which  does 
contain  the  terms. (e)" 

§  5"21,  For  the  ascertainment  and  identification  of  the 
actual  i^aper  referred  to,  i^arol  evidence  is  admissible :(/) 
for  the  one  paper  cannot  be  physically  contained  in  the 
other  paper.  In  the  same  way,  in  the  case  of  a  bequest  in 
a  will,  the  thing  given  and  the  person  to  whom  it  is  given 
must  be  mentioned  in  the  instrument,  but  the  actual  identi- 
fication of  the  thing  and  the  person  must,  from  the  nature 
of  the  case,  be  dehors  the  instrument,  and,  therefore,  a  mat- 
ter of  parol  evidence.  (//)' 

(e)  Allen  v.Bennct, 3 Taunt..  169;  Rldgway  450.    Where  the  terms  of  the  contract  are 

V.  Wharton,  3  De  G.  M.  &  G.,  6T7:  S.  C,  6  H.  contained  in  several  tlocunients,  all  must  be 

L  C.,238.     See,  also,  per  Lord  Elrlon  in  Coles  produced.    See  Post  v  Marsh,  16  Ch.  D, 395. 

V.  Trecothlck,  9  Ves.,  -i'yO;  Gaston  v.  Fran-  (/)  Per  Lord  Redesdale  in  Clinan  v.  Cooke, 

kum,  2  De  G   &  Sin.,  561;  Powell  v.  Dillon.  3  1  Sch.  &  Lef.,  33. 

Ball.  &  B.,  416;  Long  v.  Millar,  4  C.  P.  D.,  (g)  See  supra,  §325. 

'  Barry  v.  Coombe,  1  Pet.,  640;  Case  v.  Worthington,  1  Root,  173. 

'  Blair  v.  Snodgrass,  1  Sneed  (Tena.),  1 ;  Tallmau  v.  Franklin,  4  Keru. 
(N.  Y.),  584. 

'In  Blair  V.  Snodgrass,  1  Sneed,  1,  it  is  said  that,  while  a  contract  for  the 
sale  of  land  may  be  perfectly  valid,  under  the  statute  of  frauds,  in  detached 
writings,  that  a  specitic  performance  will  not  be  decreed,  imless  the  papers  can, 
by  reference  to  each  othei-,  be  connected  Avithout  the  introduction  of  parol  evi- 
dence. It  is  plainly  the  law  that  the  precise  meaning  of  the  parties  must  be 
clearly  ascertained  from  the  instrument  themselves,  to  the  exclusion  of  extrinsic 
evidence;  and  the  decisions  upon  this  point  are  substantially  the  same,  both  at 
law  and  in  c^iuity.  Brettel  v.  Williams,  4  Excheq.,  623;  Saunderson  v.  Jack- 
son, 3  B.  &  P..  238:  Western  v.  Russell,  3  Ves.  &  B.,  188;  Forster  v.  Hale,  3 
Sumn.,  096;  Allen  v.  Bennett,  3  Taunt.,  169:  Ide  v.  Stanborn,  lo  Verm.,  685; 
Toome  v.  Dauson,  Cheves,  6S;  Parkhurst  v.  Van  Cortland,  1  John.'s  Ch.,  273. 
Parol  evidence  is,  however,  admissible  to  identify  a  written  contract.  FarweU 
v.  Lowther  18  111.,  253 

Parol  promise  for  tlie  benefit  of  one  wlio  is  not  a  party  to  the  ar]reement.'\  An 
action  may  be  successfully  maintained  by  a  third  person,  one  who  is  not  a  party 
to  the  contract,  in  a  case  where  a  parol  promise  has  been  made  for  his  benefit, 
he  having  partly  performed  under  it.     Crocker  v.  Higgins,  7  Conn.,  342. 

Reformntion  of  inritten  instrument  hy  parol.']  Parol  evidence  maybe  given 
that  a  mistake  has  been  made  in  a  written  agreement,  and  it  may  be  rectified 


STATUTE   OF  FRAUDS.  ETC,  267 

§  533.  There  must,  however,  be  a  reference :  therefore, 
where  the  contract  made  no  reference  to  an  advertisement 
respecting  the  property  which  was  sought  to  be  introduced 

and  specifically  enforced.  It  must,  however,  be  conclusively  shown,  that  the  in- 
strument does  not  conform  to  the  intention  of  the  parties,  and  tlie  proposed 
connection  must  be  established  by  verv  conclusive  proof.  Philpot  v.  Eliott.  4 
Md.  Ch.,  273;  Hunt  v.  Rosnomer,  8  Wheat.,  174;  Tyson  v.  Passraore,  2  Pa. 
St.,  122.  An  absolute  deed  may  be  shown  to  be,  in  fact,  a  mortgage.  Taylor 
V.  Luther,  2  Sumn  ,  228;  Artz  v.  Grove,  21  Md.,  456.  "When  it  appears  that 
the  understanding,  at  the  time  of  the  verbal  promise,  was,  by  a  writinsr.  to 
comply  with  the  provisions  of  the  Statute  of  Frauds,  it  is  something  more  than 
a  mere  verbal  promise.  The  opposite  party  relies  upon  the  special  stipulation 
to  reduce  it  to  writing,  and  thus  make  him  secure.  A  chancellor  would  decree 
its  specific  performance.  If,  in  confidence  that  such  writing  will  be  exf>cuted, 
the  legal  title  is  acquired,  it  is  a  fraud  in  the  purchaser  to  refuse  to  do  what 
was  promised,  and  claim  to  hold  discharged  of  it,  which  will  constitute  him  a 
trustee  ex  maleficio."  Sharswood,  J.,  in  Wolford  v.  Herrington,  74  Pa.  St.,  311 : 
Wells,  J.,  in  Glass  v.  Hulbert,  102  Mass.,  24,  holds  in  a  case  where  "the  pro- 
posed reformation  of  an  instrument  involves  the  specific  enforcement  of  an 
oral  agreement  within  the  Statute  of  Frauds,  or  where  the  terms  sought  to  be 
added  would  so  modify  the  instrument  as  to  make  it  operate  to  convey  an  in- 
terest or  secure  a  right  which  can  only  be  conveyed  or  secured  through  an  iusstru- 
ment  in  writing,  and  for  which  no  writing  has  ever  existed,  the  Statute  of 
Frauds  is  a  sufficient  answer  to  such  a  proceeding,  unless  the  plea  of  the  statute 
can  be  met  by  some  ground  of  estoppel  to  deprive  the  party  of  the  rights  to 
set  up  the  defense.  The  fact  that  the  omission  or  defect  in  the  writing,  by 
reason  of  which  it  failed  to  convey  the  land,  or  express  the  obligation  which 
it  is  sought  to  make  it  convey  or  express,  was  occasioned  by  mistake,  or  bv  de- 
ceit and  fraud,  will  not  alone  constitute  such  an  estoppel.  There  must  occur, 
also,  some  change  in  the  condition  or  position  of  the  party  seeking  relief,  by 
reason  of  being  induced  to  enter  upon  the  execution  of  the  agreement,  or  to 
do  acts  upon  the  faith  of  it,  as  if  it  were  executed  with  the  knowledge  and 
acquiescence  of  the  other  party,  either  express  or  implied,  for  which  he  would 
be  left  without  redress  if  tlie  agreement  were  to  be  defeated."  See,  also,  Wil- 
son V.  Watts,  9  Md.,  So^i;  Heth  v.  Woodbridge,  fi  Rand,  605;  Chetwood  v. 
Brittin,  1  Green's  Ch.,  438;  Luckett  v  Williams,  37  Mo.,  38«;  Espv  v.  Ander- 
son, 14  Pa.  St.,  30'^;  Markle  v.  Wehrheim.  32  111.,  534.  The  respondent  is 
entitled  to  more  latitude  in  the  introductions  of  parol  proof  to  vary  a  written 
agreement,  than  is  the  petitioner.  Quinn  v.  Roath,  37  Conn.,  16.  Where  the 
parties  agree,  in  the  writing  itself,  that  parol  evidence  may  establish  its  terms, 
it  is,  of  course  admissible.     Fowler  v.  Redicom,  52  111.,  A(^% 

Rule  where  the  properij/ lias  been  obtained  b>/  frai/d.]  "If  the  defendant  en" 
tered  into  the  arrangement  with  the  premeditated  design  to  mislead  the  confi- 
dence of  the  plaintiff,  and  of  practicing  upon  his  credulity  and  want  of  caution 
to  get  the  title  of  the  property  into  his  own  hands,  and  then  convert  it  into  tlie 
means  of  oppressivelv  using  it  for  his  own  benefit,  the  case  would  be  out  of 
the  Statute  of  Frauds."  Storv,  J.,  in  Jenkins  v.  Eldridge,  2  Story,  181 ;  see. 
also.  Kinard  v.  Hierz,  3  Rich's  Eq.,  423;  Teague  v.  Fowler,  56  Ind.,  563; 
McDonnald  V.  :Mav.  1  Rich.'s  Eq.,  95;  Schmidt  v.  Gatewood.  2  id.,  162;  Gill 
V.  Bickuell,  2  Cusli  ,  355;  Willink  v.  Vanderveer,  1  Barb  ,  599. 

JVo  ovisideraiionfor  the  parol  agreement.']  The  Statute  of  Frauds  always  ap- 
plies to  a  contract,  in  a  case  where  the  only  defense  is,  that  one  party  was 
guiltv  of  a  fraud  in  refusing  to  perform  his  part  of  the  agreement:  e.  ;/  .  A  and 
B.  both  being  present  at  the  sale,  made  a  verbal  arrangement  to  the  effi  ct  that 
A.  should  bid  off  the  estate  in  his  own  name,  pay  the  vendor,  and  enter  into  a 
written  contract  for  the  purchase  of  the  land;  that  the  same  should  be  con- 
vened to  them  as  tenants  in  common,  B.  agreeing  immediatelv  to  refund  one- 
hnlf  of  the  price  paid  bv  A.:  both  parties  mutually  agree!  to  join  in  the  mort- 
gages required  to  be  given;  all  of  which  was  done.     Held,  "a  p<irry,  in  no  legal 


268         FRY  ox  SPKCIFIC  I'KRFOKMAXCE  OF  CONTRACT^. 

to  supply  a  term,  it  was  held  that  this  could  not  be  done  :{h) 
and  so  also  the  mere  admission  in  writing  of  a  contract, 
without  ascertaining  its  terms,  is  inoperative. (i)' 

^  ,V^:i.  Further,  the  reference  must  be  to  terms  in  writing : 
therefore,  where  a  writing  duly  signed  referred  not  to  a 
writing  but  to  terms  arranged  by  parol,  there  was  no  valid 
contract.(i)  But  the  terms,  if  in  fact  in  writing,  need  not 
appear  on  the  face  of  the  other  paper  to  be  so :  so  that  a 
reference  iu  one  paper  to  "  terms  agreed  on,"  when  in  fact 
the  only  terms  agreed  on  were  in  writing,  was  held  suffi- 
cient, (k) 

§  5*34.  Whether  the  reference  must  be  express  and  on 
the  face  of  the  paper  containing  the  signature,  or  whether  it 
be  enough  that  a  jury  or  judge  of  fact  would  conclude  from 
the  circumstances  and  contents  that  the  two  papers  are  parts 
of  one  corres]3ondence,  may  be  open  to  doubt.  The  latter 
is  i^'obably  the  better  view. 

§  535.  In  a  case  arising  on  an  entry  of  a  contract  in  an 
auctioneer's  book,  where  the  entry  contained  no  reference 
to  the  conditions,  subject  to  which  the  sale  took  place.  Hall, 
y.  C,  said  that  the  entry  must  contain  such  a  reference  to 
the  conditions  as  to  identify  them  iipon  production  as  being 
the  conditions  mentioned  in  the  entry.  (Z) 

§  526.  In  Tawney  v.  Crowther,(m)  the  contract  was  re- 
duced into  writing,  and  was  in  possession  of  the  defendant, 
who,  in  answer  to  a  letter  from  the  plaintiff's  solicitor,  ask- 
ing him  to  meet  him  and  sign  the  contract,  wrote  a  letter,  in 

(h)  Clinan  v.  Cooke,  1  Sch.  &  Lef.,  22    Dis-       (j)  Ridgway  v.  Wharton,  3  De  G.  M.  &  G., 

tinguish  Nene  Valley  Drainage  Commiaslon-  677;  S.  C,  6  H.  Ij.  C,  238. 
ers  V  Diinkley,  i  Ch  D.,  1.  (k)  Baumann  v.  James,  L.  R.  3  Ch.,  .''lOs. 

(J)  Rose  V.  Cuiiynghame,  11  Ves.,  550;  Clerk       (0  Rlshton  v.  U  hatniore,  8  Ch.  U.,  4(i7. 
V.  Wright,  1  Alk.,  12.  (m)  3  Bro.  C.  C,  161,  318. 


sense,  commits  a  fraud  by  refusing  to  perform  a  contract  void  of  its  provisions. 
He  has  not,  in  that  sense,  made  a  contract,  and  has  a  perfect  right  both  at  law 
and  in  equity  to  refu.se  performance."  Grover,  J.,  in  Levy  v  Brush,  45  N.  Y  , 
597;  see,  also,  Barnett  v.  Dougherty,  32  Pa.  St.,  371 ;  Hogg  v.  Wilkins,  1  Grant 
(Pa  ),  67;  Patterson  v.  Horn,  1  id.,  301;  Campbell  v.  Campbell,  2  .Tones'  Eq., 
364;  Wallace  v.  Brown,  10  N.  J.  Eq.,  308;  Dodd  v.  Wakeman,  28  id.,  4s4; 
Farnhum  v.  Clements,  51  Me.,  4^6;  Wheeler  v.  Reynolds,  66  N.  Y.,  227; 
Walker  v.  Locke,  5  Cush.,  '.)'•;  Hickman  v.  Grimes,  1  A.  K.  Marsh,  86;  Cooper 
V.  Stevens,  1  John.'s  Ch.,  425. 

'  But  it  has  been  decided  in  Virginia,  that  a  letter  promising  to  convey  a 
certain  tract  of  land,  "according  to  contract,"  is  a  sufficient  memorandum 
under  the  Statute  of  Frauds,  although  the  terms  of  the  contract  are  not  men- 
tioned, if  the  party  can  prove  the  price  to  be  given  by  one  witness.  Johnson 
V.  Ronald,  4  Munf.,  77.     See  McConnell  v.  Brillhart,  17  111.,  354. 


STATUTE   OF  FRAUDS,  ETC.  269 

which  he  mentioned  his  having  been  from  home,  acknowl- 
edged having  said  his  word  should  be  as  good  as  his  bond, 
and  that  there  was  time  enough  before  Michaelmas  to  settle 
everything ;  and  again  said  ' '  that  his  word  should  always 
be  as  good  as  any  security  he  could  give."  Lord  Tliurlow, 
first  on  a  plea  of  the  statute,  and  subsequently  on  the 
answer,  which  insisted  on  the  statute,  held  that  the  letters 
and  the  paper  together  constituted  a  valid  contract.  "  If  a 
letter  cannot  be  referred  to  the  agreement,"  said  his  lord- 
ship, "or  does  not  contain  proper  terms,  I  cannot  treat  it  as 
out  of  the  statute  ;  but  I  confess,  on  what  appears  here,  the 
papers  do  refer  to  that  agreement,  and  contain  a  promise  to 
perform  it ;  the  defendant  did  intend  by  the  letter  to  raise 
a  confidence  that  the  agreement  should  be  performed. (//) 
Lord  Redesdale  has  expressed  his  disapprobation  of  this 
case,  considering  that  the  promise  was  intended  to  be  of  an 
honorary  and  not  of  a  legal  and  binding  nature  ;(o)  and  the 
correctness  of  the  decision  has  been  questioned  by  Lords 
Cran worth  and  Brougham  in  the  case  of  Ridgway  v.  Whar- 
ton. (^)  From  the  note  at  the  end  of  the  case  in  Brown's 
Reports  {q)  it  appears  that  the  decree  was  by  consent. 

§  537.  In  another  case,  the  defendants'  letters  referred 
distinctly  to  the  conditions  of  sale  which  were  in  their 
hands,  signed  by  the  plaintiff,  and  the  Court  of  Queens 
Bench  held  that  no  parol  evidence  was  necessary  to  connect 
the  two,  and  that  there  was  a  binding  contract.  (?*)  And 
where  A.  wrote  to  B.,  pro]3osing  to  let  a  public  house  on 
certain  terms,  and  B.'s  clerk  met  A.  and  discussed  the  terms 
of  the  lease,  and  afterwards  B.  replied  that  he  was  willing 
to  take  the  premises  of  A.,  this  was  held  to  refer  to  the 
terms  contained  in  A.'s  letter,  and,  therefore,  to  constitute 
a  contract.  (5) 

§  528.  (2)  Letters  may  be  used  to  supply  a  temi  wanting 
in  the  principal  writing :  thus  where,  in  a  memorandum, 
the  lessor's  name  was  not  mentioned,  and  subsequently  a 
letter  from  the  lessee,  referring  to  this  document,  mentioned 
his  (the  lessor's)  name  in  a  manner  from  which  the  court 

(n.1  3  Bro.  C.  C.,3i0.  (r)  Dobell  v.   Hutchinson,  3  A.  &  E.,  355. 

(O)   See  Belt's  n  ,  3  Bro.  C.  C,  153.  See,  also.  Saunderson  v.  Jackson,  2  B.  &  P., 

(P)  6  H.  L.  C,  265,  271.    See  per  Lord  St.  238,  and  Jackson  v.  Lowe,  1  BiDfr.,  9 

Leonards,  8.  C  ,  293.  l«)  Wood  v.  »carth,  2  K.  &  J  ,  33    See,  too, 

(q)  3  Bro.  C.  0.  (Belt's  ed.),  320.  Morris  v.  Wilson,  5  Jur.  (N.  S.),  163. 


270         FliV  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

could  imply  that  he  was  lessor,  there  was  held  to  be  suffi- 
cient evidence  oi'  the  contract. (i")  But  where  {u)  two  persons 
came  to  a  verbal  agreement  for  the  sale  and  purchase  of  an 
estate,  and  the  vendor  tliereupon  signed  and  handed  to  the 
purchaser  a  memorandum  of  the  particulars  of  the  property 
and  the  i3rice,  which,  however,  did  not  contain  the  pur- 
chaser's name  ;  and  afterwards  the  vendor  signed  and  sent  to 
the  i3urchaser  a  letter,  saying,  "I  am  about  to  relet  the  land 
at  S.  The  Lady  Day  rents  will  be  mine  and  the  Michaelmas 
yours.''  It  was  held  that  the  defect  in  the  memorandum 
was  not  supplied  by  the  letter. 

§  5tJi).  (8)  Letters  may  themselves  constitute  the  contract 
and  the  written  evidence  of  it :  and  the  cases  in  which  a  con- 
tract is  thus  constituted  by  correspondence  between  the  par- 
ties are  very  numerous  :  many  of  them  have  been  already 
discussed,  (y)' 

g  o!tO.  It  is  one  of  the  first  principles  of  a  case  of  this 
kind  that  where  the  contract,  or  the  note  or  memorandum 
of  the  terms  of  the  contract,  has  to  be  found  in  letters,  the 
whole  of  the  correspondence  which  has  passed  must  be  taken 
into  account,  (w)  Accordingly,  in  a  case  where  the  first  two 
letters  of  a  correspondence,  taken  by  themselves,  appeared 
to  amount  to  a  complete  contract,  but  there  really  w^ere 
other  terms,  which  when  those  letters  were  written  were  un- 
settled and  in  the  result  remained  unsettled,  the  House  of 
Lords  held  that  there  was  no  concluded  contract,  (^r)  The 
I)laintiif  cannot  insist  on  some  terms  or  some  letters  and  re- 
ject others.  If  tlie  letters,  taken  as  a  whole,  do  not  consti- 
tute the  contract,  the  plaintiff  must  fail.(y/) 

§  dJJl.  The  contract  may  even  be  sufficiently  evidenced 
by  a  letter  addressed  to  a  third  person,  provided  it  ascertain 
the  terms  of  the  contract. (z) 

g  5ti'2.   It  is  desirable  to  consider  the  effect  of  letters 

(0  Warner  v.  WillingtOD,  3  Drew.,  523.   see  {x)  Hussey  v.  Hornc-Pavne,  4  App.  C,  311. 

this  case  iotra,  §  533.  ly)  Neshaiu  v.  belby,  L.  k.  J3  Eq  ,  191 ;  aff'd 

(U)  ftkeltoii  V  lole  1  De  G.  &  J.,  587.  L.  K.  7  C'h.,  4  6. 

ivj  See  supra,  §-.!73  t-tseq.   Sve,  also,  W'est-  (a)  Per    Lord    llardwicbe    in    Welford    v. 

em  V.  Hu^scil,  3  V    &  B.,  187;  Couplan.i  v.  Bt^az.-ly,  3    vtk  .5(i3;  Child  v.  Comber,  3  Sw., 

Arrowsmith,  IS  L.  T  u\.S.),755;  R-ssit-rv.  4.;3  n.;  -fapoi.d  v.  Meale.  Prec.  Cli.,  50  i.    See. 

Miller,  oCh.  I)  ,  648;  3  App.  C  ,  1124;  IJoii-  also,  narkwoitli  v.  Young,  4  Drew.,  1,  par- 

newtll  V  Jenkins,  8  Ch    L).,  70.  licularly  13. 

(W)  Per  Lord  Cairne  In  Hussey  v.  Horne- 
Payue,  4  App.  C  ,  316. 


-  NeufviUe  v.  Stuart,  1  Hill.  CL.,  159. 


STATUTE   OF  FRAUDS,  ETC.  271 

which  repudiate  or  disown  a  contract  referred  to  in  them. 
Where  the  letters  deny  that  a  contract  ever  existed,  it 
wonld  seem  impossible  to  treat  th^m  as  the  evidence  or  an 
admission  of  a  contract,  bnt  wherts  the  ietter.s  repudiate  on 
the  gronnd  of  matter  subsequent,  as  for  example,  of  damage 
done  to  the  goods  bought,  there  a  statement  of  the  terms  of 
the  contract  in  the  letters  may  satisfy  the  statute,  (a) 

§  5S3.  The  subject  v/as  discussed  in  the  case  of  Warner 
V.  Willington,(^)  before  Kindersley,  V.  C.  In  that  case 
there  was  a  memorandum  for  a  lease,  signed  by  the  defend- 
ant, the  proposed  lessee,  but  deficient  in  the  lessor  s  name, 
and  then  a  letter  by  the  defendant,  withdrawing  the  memo- 
randum, but  referring  to  the  lessor's  name:  and  the  Vice- 
chancellor  held  that  the  letter  suiDplied  the  original  defect 
in  the  memorandum,  and  converted  it  into  a  contract  bind- 
ing under  the  statute.  It  is  submitted  that  this  decision  is 
not  without  difficulties  on  principle  ;  for  it  would  seem  that 
the  whole  letter  must  be  looked  at,  and  then  that  affirms  the 
memorandum  to  be,  wiiat  in  fact  without  the  letter  it  was, 
namely,  a  mere  offer  :  and,  further,  the  case  appears  difficult 
to  reconcile  with  other  decisions.  Thus,  where  buyers  have 
written  letters  distinctly  referring  to  invoices  of  the  goods, 
but  insisting  that  they  were  not  bound  to  acce]Dt  the  goods, 
and  thus  repudiating  the  contract,  the  courts  have  held  that 
there  is  no  sufficient  writing  w^ithin  the  17th  section  of  the 
Statute  of  Frauds  :(c)  and  in  a  case  in  the  exchequer,  in 
w^hich  Warner  v.  Willington  was  cited,  the  court  considered 
that  it  would  be  treating  the  Statute  of  Frauds  as  nothing, 
if  a  letter,  merely  declining  to  accept  goods  under  a  parol 
contract  or  an  insufficient  written  contract,  were  held  to 
take  the  case  out  of  the  statute.  (fZ)  And  again,  in  a  case  in 
chancery.  Turner,  L.  J.,  treated  the  argument  that  a  letter 
declining  to  enter  into  a  contract  could  constitute  one  as  too 
strained  to  require  any  observation,  (e) 

§  oSM.  It  is  now  distinctly  settled,  after  some  difference 
of  oi3inion,  that  a  w^ritten  memorandum  of  contract  after 

(a)  Bailey  v.  Sweeting-,  9  C.  B.  (N.  S.),  843;  in  Dobell  v.  Hutchinson,  3  A.  &  E.,371;  Gos- 

Nesham  V.  Selby,  L.K.  13Eq  ,191;  7Cti.,4(j6;  bell  v.  Archer, -J  itl.,  500. 
of.  Jackson  v.  Oglander,  13  W.  li  ,  936.  (rf)  tjooilman  v.  Griffiths,  1  U.  &  N'.,  574. 

(6)  3  Drew.,  5-23.  (e)    Wood  v.  Alidglej  ,  5  De  G.  Jl.  &  G.,  41, 

(c)  Cooper  V.  Smith,  15  East,  liS;  Richards  40. 
V.  Porter,  b  B.  &  C,  437;  per  Lord  Denman 


272        FKY  ox  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

marriage,  in  pursuance  of  a  parol  one  before,  takes  the  case 
out  of  the  statute. (/)' 

§  535.  With  regard  to  the  mode  in  which  a  contract  within 
the  statute  should  be  pleaded,  the  rules  of  court  under  the 
judicature  act  have  swept  away  the  diversity  which  existed 
in  the  pleadings  at  common  law  and  in  chancery.  Before 
these  acts,  it  was  enough  at  law  to  allege  a  contract,  on  the 
ground  that  "  with  respect  to  acts  valid  at  common  law,  but 
regulated  as  to  the  mode  of  performance  by  statute,  it  is 
sufficient  to  use  such  certainty  of  allegation  as  was  sufficient 
before  the  statute :"  (/7)  whereas  in  chancery  it  \vas  not 
enough  to  allege  a  contract  without  stating  that  it  was  in 
writing,  on  the  ground  that  a  parol  contract  was  a  contract, 
though  not  an  enforceable  one  ;  and  a  bill  merely  alleging  a 
contract  was,  therefore,  open  to  demurrer.  (^)' 

§  536.  Now,  as  we  have  seen,  one  uniform  mode  of  plead- 

(f)  Taylor  v  Beech,  1  Ves.  Sen  ,  297;  per  34.    In  RaiKiall  v.Morf?an(12  Ve8.,67),  Grant, 

Lord  Cottenham  in  HammerBley  v.  De  Blel,  M.  R.,  expressed  doubts  on  this  point. 

12  CI.  &  Fin  ,  64  n  ;  per  Turner,  L.  J.,  in  (o)  Steph.  Plead.,  401  (4th  ed  ). 

Surcome  v.  Pinniger,  3  De  G.  M.  &  G.,  571 ;  Qi)  Barkworth  v.  \  oung,  4  Crew  ,  1 ;  and 

Baikworth  v.  Young,  4  Drew.,  1.    See.  also,  see   per   Lord    Thurlow  in  Whitchurch  y. 

Hodgson  V.  Hutchenson,  5  Vin.  Abr.,  522.  pi.  Bevis,  2  Bro.  C.  C,  559;  per  Grant.  M.  B.,  m 

Spurrier  v.  Fitzgerald,  6  Ves.,  55.i. 

>  Wood  V.  Savage,  Walk.  Ch.,  471;  see  Livingston  v.  Livingston,  3  .John.'s 
Ch.,  537,  decided  by  Kent,  Ch.;  Argenbright  v.  Campbell,  3  Hen.  &  M.,  144. 

2  See  Bean  v.  Yalle,  2  Mis. ,  126.  But  a  different  rule  is  laid  down,  at  law,  in 
Stern  v.  Drinker,  -^  E.  D.  Smith,  401.  In  that  case,  which  came  before  the 
court  on  appeal,  the  plaintiff's  complaint  alleged  that  he  recovered  a  judgment 
a."-ainst  one  Nusbaun  for  |45;  that  he  issued  an  execution  thereon,  and  levied 
on  sufficient  property  of  the  defendant  to  satisfy  the  judgment;  that  the  de- 
fendant agreed  with  him,  that  if  the  plaintiff  would  release  and  abandon  the 
levy,  and  "deliver  the  property  to  the  debtor,  he,  the  defendant,  would  pay 
the  plaintiff  the  amount  of  the  said  judgment;  that  the  plaintiff  did  abandon 
such  levy,  and  therefore  claimed  to  recover  from  the  defendant  the  amount  of 
the  judgment.  But  the  complainant  did  wd  state  that  this  promise  was  in 
writing."  Woodruff,  J.,  in  delivering  his  opinion,  said,  *  *  *  "  this  is  the 
first  instance  within  my  observation,  in  which  judgment  was  ever  ordered  for 
a  defendant,  upon  a  demurrer  to  a  declaration,  because  the  promise  declared 
upon  was  not  averred  to  be  in  writing.  It  is  not  necessary,  in  declaring  upon 
a  promise  (although  it  be  confessedly  within  the  statute,  and  if  not  in  writmg, 
void),  to  aver  that  it  was  written.  It  is  suflicient  for  the  plaintiff  if  it  appear 
in  evidence  on  the  trial  in  writing.  And  for  the  well-settled  reason  that  the 
statute  introduces  a  new  rule  of  evidence  only,  and  not  a  new  mle  of  pleading. 
And  this  rule  is  applicable  to  all  contracts  within  the  statute.  Whether  the 
evidence  will  support  the  claim,  is  a  question  which  does  not  arise  upon  the 
2)leading,  but  upon  the  trial  of  an  issue  thereon.  For  it  is  only  necessary  in 
pleading  to  state  the  legal  effect,  to  wit,  the  promise.  And  if  it  appears  on  the 
trial  that  the  defendani  made  no  binding  promise,  then  in  judgment  of  law  he 
made  no  promise."  In  support  of  this  position,  were  cited  Roberts  on  Frauds, 
156,  202;  Buller's  N.  P.,  279;  3  Burr.,  1890;  1  Saund.  R.,  276,  note  2,  to  Duffe 
V.  Mayo;  Case  v.  Barber,  3  Raym.,  451;  Birch  v.  Bellamy,  12  Mod.,  540; 
Hutchinson  v.  Hew.son,  7  T.  R.  350,  n.;  3  id.,  159;  Read  v.  Brookman,  by  Lord 
Kenyan,  2  Chit.  PI.,  121,  n.  s.;  123,  n.  x. ;  2  Saund.  PI.  and  Ev.,  546;  see,  also, 
on  tills  point,  the  case  of  Miller  v.  Upton,  6  Ind.,  53. 


STATUTE   OF   FRAUDS,  ETC.  273 

ing  prevails  in  all  the  divisions  of  the  high  coui-t :  and  now 
an  allegation  of  a  contract  is  sufficient  without  stating  it  to 
be  in  writing,  and  the  defendant  who  admits  the  contract  in 
fact,  but  denies  its  sufficiency  with  regard  to  the  statute, 
must  specially  raise  the  point  by  his  defense. (/)' 

§  537.  Another  important  provision  of  the  rules  is  to  the 
effect  that  where  a  contract  does  not  arise  from  an  express 
agreement,  but  is  to  be  implied  from  a  series  of  letters  or 
conversations  or  otherwise  from  a  number  of  circumstances, 
it  is  sufficient  in  pleading  to  allege  such  contract  as  a  fact, 
and  to  refer  generally  to  such  letters,  conversations,  or  cir- 
cumstances without  setting  them  out  in  detail ;  and  that  if 
in  such  a  case  the  i^erson  so  pleading  desires  to  rely  in  the 
alternative  upon  more  contracts  than  one,  as  to  be  imx)lied 
from  such  circumstances,  he  may  state  the  same  in  the 
alternative.  (,y) 

3.  What  takes  a  contract  out  of  the  statute. 

§  538.  Courts  of  equity  hold  that,  notwithstanding  the 
express  language  of  the  statute,  a  case  may  be  taken  out  of 
its  operation  by  any  one  of  the  following  circumstances : 
(1)  by  the  sale  being  by  the  court ;  (2)  by  an  admission  in 
the  defense  of  a  contract  in  fact,  where  the  defense  does  not 
insist  on  the  statute;  (3)  by  fraud, (/l*)  and  (4)  by  a  parol 
contract  and  part  performance,  which  is,  as  we  shall  see, 
but  a  particular  case  of  fraud.  In  the  two  first  cases  the 
reason  is,  that  the  danger  of  that  which  the  statute  was 
meant  to  guard  against  does  not  arise,  and  in  the  third 
and  fourth  that  the  statute  shall  not  be  made  use  of  to 
cover  a  fraud. 

§  o39.  (1)  It  was  held  that  a  sale  in  the  court  of  chancery 
by  private  contract,  in  pursuance  of  an  order  confiiming  a 

(i)  Ord.  SIX.  r  23.    Cf.  as  to  the  distinct-       (i)  Ord.  XIX,  r.  27.  .  ,  ,    , 

ness  now  required  in  pleadings,  Byrd  v.        (k)  See,  too,  Intra,  §  ifel:  (mistake). 
Nunn,  7  Ch  D.,  284;  and  see  supra,  §  485. 


1  The  statute  of  frauds  is  no  defense  where  the  coutract  is  admitted,  and  the 
defendant  fails  to  plead  the  statute.  Morse  v.  Merest,  6  Mad.,  26;  Ridgway  v. 
Whorton,  3  De  G.  M.  &  G.,  G77;  Lincoln  v.  Wright,  4  id.,  1;  .Jenkins  v.  El- 
dridge,  3  Story,  181;  Willink  v.  Vanderveer,  1  Barb.,  599;  Trapnall  v.  Brown, 
19  Ark.,  39;  Shield  v.  Tramell,  id.,  51;  contra,  Box  v.  Starford,  13  Smed.  & 
Marsh.,  93;  see,  also,  Glass  v.  Hulbert,  102  Mass.,  38. 

18 


274        FRY  ON  SPECIFIC  PEllFOKMANCE  OF  CONTRACTS. 

master's  report,"  was  exempted  from  the  Statute  of  Frauds, 
and  consequently  might  be  enforced  against  tlie  representa- 
tive of  a  purchaser  who  had  not  signed  it.  (Z)  The  consid- 
erations upon  which  tliis  decision  was  based  are  that  the 
judicial  character  of  the  proceeding  is  such  as  to  jorevent 
the  hazard  of  uncertainty  and  perjury  which  the  statute 
was  intended  to  prevent,  and  moreover  that,  in  such  a  case, 
the  purchaser  having  been  a  party  to  the  proceedings  in 
which  the  order  for  sale  to  him  was  made,  is  bound  by  the 
order,  and  Avould  be  guilty  of  contempt  in  refusing  to  pay 
the  2:)urchase  money. 

§  540.  The  same  rule  was  held  to  apply  to  sales  in  the 
ordinary  way  by  auction  before  a  master,  (?7z)  and  would  no 
doubt  apply  to  sales  under  the  present  practice  ;(7z)  but  not 
to  ordinary  sales  by  public  auction,  because,  it  is  said,  such 
sales  might  be  without  written  or  printed  particulars  and 
conditions,  and  also,  no  doubt,  because  they  are  in  no  way 
proceedings  connected  with  the  court. (o) 

§  541.  (2)  An  admission  of  a  parol  contract  in  the  answ^er 
of  a  defendant  to  the  bill  of  complaint  was,  under  the  old 
practice,  held  to  take  the  case  out  of  the  statute  where  the 
answer  did  not  insist  upon  the  statute,  and  this  because 
the  admission  took  the  case  out  of  the  mischief  which  the 
statute  was  designed  to  remedy.  C^;')''  Another  reason  sug- 
gested for  the  rule  was  that  the  contract,  though  originally 
in  parol,  was,  after  admission,  evidenced  by  writing  under 
the  signature  of  the  party,  which  would  be  a  sufficient 
compliance  with  the  statute  as  interpreted  by  the  decided 
cases.  (§') 

(I)  Att-Gen.  V.  Day,  1  Ves.  Sen.,  218;  per       (o)  Blapdeii  v.  Braflbear,  12  Vrs.,  466,472. 

Grant,  M  It.,  in  BlagdtMi  v.  liradbear,  12  Ves.,  See,  too,  Mason  v.  AraiUagc,  13  iil  ,  35 
472;  per  Lord  Cottenham  In  bx  parte  CiUts,        (p)  Gunterv  Halser,  Ainbi.,  586;  Liinond- 

3  Deac  ,  207:  Lord  v   Lord,  1  Sim.,  503.  sou  v.  .'iweed,  GIU>.,  35.     See,  aiso,  per  Lord 

(m)  Att  -Gen.  v.  Dav,  ubi  supra.  Rosslyn  in  Kendeau  v.  Wyatt,  2  II.  Bl  ,  68. 

(«)  See  St.  Leon.  Vend  ,  86;  Uart,  Vend  ,        (,q)  Story,  Kq.  Jur.,  §  75o. 
197  (5th  ed.). 


'  See  the  cases  of  Gordon  v.  Sims,  3  McCord's  Ch.,  151,  and  of  Jenkins  v. 
Hogg,  2  Const.  Rep.,  821.  Cases  of  tliis  class  are  there  rather  considered  to 
resf  upon  the  same  basis  as  ordinary  auction  sales — i.  e.,  the  fact  that  the  mas- 
ter or  commissioner  is  essentially  the  agent  of  both  parties— than  treated  as 
exceptions  because  of  their  legal  nature. 

-  Woods  V.  Delle,  11  Ohio,  455.  But  the  doctrine  is  firmly  established  that, 
even  where  the  answer  confesses  the  parol  agi-eement,  if  it  insists,  by  way  of 
defense,  upon  the  protection  of  the  statute,  the  defense  must  prevail  as  a  com 
petent  bar.     Story's  Eq.  PI.,  §  763;  Thompson  v.  Todd,  1  Pet.   C.   C,  388; 


STATUTE   OF   FRAUDS,  ETC.  275 

§  543.  The  substantial  result  of  the  present  system  of 
pleadini!,-  is  to  continue  this  effect  of  an  admission  of  the 
contiact  in  fact,  and  furthermore  to  treat  tlie  contract  as 
admitted  unless  it  is  actually  denied.  For  it  results  from 
the  rules  of  court, (^")  that  if  the  contract  be  not  expressly- 
denied  to  exist  in  fact,  and  expressly  stated  not  to  satisfj^ 
the  Statute  of  Frauds,  it  will  be  held  that  the  defendant 
has  admitted  both  its  existence  and  its  sufficiency  to  satisfy 
the  statute. 

§  543.  In  the  case  of  the  death  before  judgment  of  the 
person  making  such  an  admission,  his  representatives  will 
be  bound  by  his  admission  on  being  made  parties  to  the  ac- 
tion in  the  manner  provided  by  the  rules. (.9)  But  the  ad- 
mission b}^  a  vendor  that  he  had  contracted  to  sell  an  estate 
to  a  person  since  deceased  will  not  bind  the  personal  repre- 
sentatives of  such  deceased  purchaser ;  nor  will  an  admis- 
sion by  a  purchaser  that  he  had  contracted  to  buy  an  estate 
bind  the  real  representatives  of  the  alleged  vendor ;  for  it  is 
now  clearly  settled  that,  in  order  to  entitle  the  real  or  per- 
sonal representative  to  enforce  the  execution  of  a  contract 
to  the  ijrejudice  of  the  other,  there  must  have  been,  at  the 
death  of  the  deceased  contractor,  a  contract  by  which  he 
was  legally  bound,  and  which  the  court  would  have  com- 
pelled him  specifically  to  execute  ;  and  it  is  consequently 
open  to  any  of  the  parties  interested,  notwithstanding  the 
admissions  or  submissions  of  any  of  the  other  parties,  to 
take  every  objection  which  the  deceased  might  himself  have 
taken  if  living,  (z^)  Thus  the  admission  of  a  contract  by 
the  executors  of  a  testator,  will  not  bind  the  residuary 
legatee.  (?/.) 

5<  544.  (3)  The  principle  upon  which  the  court  regards 
fraud  as  forming  an  exception  to  the  statute  was  stated 
by  Lord  Eldon  as  follows:  "Upon  the  Statute  of  Frauds, 
though  declaring  that  interests  shall  not  be  bound  except 

(r)  Orrl   \IX  rr  17  "0  23  11  W-.  ^■IS,  overruling  Laeon  v.  Merlins,  3 

(.s)  Att.'Gen.'v.bay,"l've8.  Sen.,  218,221;  Atk.,  1  _  see,  also,  Potter  v.  Potter,  1  Ves. 

Ord   L    rr  "  i  5  Sen.,  437. 

(i)  BilckHLaster  v.  Harrop,  7  Ves.,  341 ;  S.  (n)  Buckmaster  v.  Ilarrop,  7  Ves.,  341 ;  S. 

C,  13  id.,  4r>G.    See  Earl  of  Uailnor  v.  Shafto,  C,  13  ul.,  4.56. 


Steams  v.  Hubbard,  8  Greenl.,  330;  Harris  v.  Knickcrbackcr  5  Wonrl.,  G38; 
1  Suo-  Vend  &  Purch.  (G  Am.  cd.).  137;  Whitbrcad  v.  Brockhurst.  1  Bro.  C. 
C.  (Am.  ed.,  1844),  407  (note  3) ;  Wbitcburch  v.  Bcvis,  3  id.,  009  (note  i);  Moore 
V.  Edwards,'  4  Ves.,  23  (note  a). 


276        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

bv  writing,  cases  in  this  court  are  perfectly  familiar  decid- 
ino-  that  a  fraudulent  use  shall  not  be  made  of  that  statute ; 
where  this  court  has  interfered  against  a  party  meaning  to 
make  it  an  instrument  of  fraud,  and  said  he  should  not  take 
advantage  of  his  own  fraud  even  though  the  statute  has  de- 
clared tliat,  in  case  those  circumstances  do  not  exist,  the 
instrument  shall  be  absolutely  void,"     One  instance  is  the 


»  Fraud  on  the  j>art  of  tlie  defendant.']  "The  rule  that  fraud  takes  the  case 
out  of  the  statute  is  too  well-settled  to  admit  of  doubt;  and  for  the  purpose  of 
showin"-  that  fraud  has  been  committed,  or  is  being  attempted,  parol  evidence 
has  alw-^ivs  been  held  to  be  admissible.  The  difficulty  has  been  in  determining 
what  amounted  to  fraud  in  the  particular  case;  and  to  this  difficulty  is  reiera- 
ble'those  conflicts  of  opinion  which  seem  occasionally  to  have  trenched  upon 
the  rule  itself.  The  rule,  however,  is  universally  acknowledged,  and  there  is 
no  case,  in  which  the  conduct  of  the  defendant  was  held  to  be  fraudulent,  that 
he  has  been  allowed  to  shelter  himself  behind  the  statute."  Cope,  J.,  in  Hid- 
den v  Jordan  21  Cal.,  93;  see,  also,  Fannin  v.  McMullin,  2  Abb.  Pr.  (N.  S.), 
224;  iiyan  v.'Dox,  34  K  Y.,  807;  S.  C,  36  id.,  511;  Nelson  v.  Worrall,  20 
Iowa,  469. 

Statuteof  Frauds,  no  defense  for  fraud.']  "We  recognize  the  doctrine,  then, 
that  a  court  of  equity  will  not  permit  the  Statute  of  Frauds  to  be  set  up  as  a 
defense  by  a  party  infected  with  fraud,  and  that  parol  trusts  of  real  estate  may 
be  established  in'direct  contradiction  to  the  statute  on  the  ground  of  fraud ; 
and  that  whenever  a  case  of  fraud  is  made  out  by  the  bill,  parol  evidence  will 
be  received  for  the  purpose  of  sustaining  the  case,  even  though  the  effect  of 
such  evidence  be  to  alter  or  vary  a  written  instrument,  and  though  the  benefit 
of  the  statute  be  insisted  upon  by  the  defendant."  Miller  v  Gotten,  5  Ga., 
346.  See,  however,  Woodward,  J.,  in  McCulloch  v.  Cowher,  5  Watts  &  Serg., 
4-27,  where  he  says,  "unless  there  be  something  in  the  transaction  more  than  is 
implied  from  the"  violation  of  a  parol  agreement,  equity  will  not  decree  the  pur- 
chaser to  be  a  trustee.  And  the  distinction  is  indispensable,  otherwise  there 
would  be  a  repeal  of  the  statute,  under  the  pretense  of  preventing  fraud,  by 
decreeing  an  express  trust,  which  would  be  introductive  of  the  very  evils  the 
statute  was  designed  to  prevent." 

Parol  trust  in  fraud  of  creditors.]  A  parol  trust  cannot  be  set  up,  where  the 
effect  or  design  is  to  delay,  hinder  or  defraud  creditors.  Murphy  v.  Hubert, 
16  Pa.  St.,  50;  S.  C,  7  id.,  420;  Hills  v.  Elliott,  12  :Mass.,  26. 

Fraud  at  puUic  sale.']  "  It  is  not  now  an  open  question  that,  when  a  party 
a<^rees  before  the  sale  to  purchase  property  about  to  be  sold,  under  an  execu- 
tion ao-ainst  a  party,  and  to  give  such  party  the  benefit  of  the  purc])ase,  the 
asreement  is  binding,  and  will  be  enforced.  The  defendant,  upon  the  faith  of 
such  agreement,  may  have  ceased  his  efforts  to  raise  the  money  for  the  purpose 
of  paying  off  the  execution,  and  thus  preventing  a  sale  of  his  property.  It 
will  not  do  to  say  that  the  party  promising  was  moved  merely  by  friendly  or 
benevolent  considerations,  and  may,  therefor,  at  his  option.  d"ecline  a  compli- 
ance with  his  agreement.  Such  considerations  constitute  the  foundation  of 
almost  every  trust,  and  the  trustee  should  be  held  to  account,  as  nearly  as  pos- 
sible, in  the  same  spirit  in  which  he  originally  contracted.  But  it  is  said  that 
the  ao-reement,  if  in  fact  made,  was  void  under  the  Statute  of  Frauds.  The 
statufe  has  reference  alone  to  a  sale  of  lands,  and  not  to  a  contract  to  purchase 
of  one  person  for  the  benefit  of  another."  Per  cunam  in  Soggins  v.  Heard, 
31  Miss.,  428;  see,  also.  Walker  v.  Hill,  21  N.  J.  Eq.,  191;  Sandfoss  v.  .Tones, 
35  Cal.,  4S1.  "  Can  it  be  tolerated  that  a  creditor  shall,  at  a  sale  of  his  debtor's 
property,  lull  him  to  sleep,  and  keep  off  other  purchasers  by  an  agreement  under 
which  he  buys  in  the  land  for  a  small  sum  much  below  its  value,  and  then  that 
he  shall  declare  that  the  agreement  was  void  under  the  Statute  of  Frauds,  and 
that  the  other  party  should  have  no  benefit  from  the  agreement,  whilst  he  reaped 


STATUTE   OF   FRAUDS,  ETC.  277 

case  of  instruction  upon  a  treaty  of  marriage  ;  the  convey- 
ance being  absolute,  but  subject  to  an  agreement  for  a  de- 
feasance, Avhich,  though  not  appearing  by  the  contents  of 
the  conveyance,  can  be  proved  aliunde — and  there  are  many 
other  instances. ' '  {v) 

§  345.  Thus,  if  it  can  be  shown  that  the  written  contract 
which  is  sought  to  be  enforced  Avas  only  signed  in  conse- 
quence of  some  collateral  contract  having  been  come  to,  the 
plaintiff  must  either  submit  to  the  collateral  contract  or  have 
his  action  for  specific  performance  dismissed ;  and  this, 
although  the  collateral  contract  is  not  evidenced  in  writing. 
Thus,  in  Clarke  v.  Grant,  (zy)  where  trustees  of  a  charity 
sought  specific  performance  of  a  written  contract  to  take  a 
lease,  and  the  main  defense  was  a  parol  contract  of  the  same 
date  as  the  written  one  and  alTecting  the  parcels,  Grant, 
M.  R.,  held  that  evidence  to  prove  the  parol  contract  was 
admissible,  and  that,  if  it  were  proved,  it  would  be  against 
equity  and  a  fraud  on  the  defendant  to  insist  upon  his  per- 
formance of  a  contract,  which  he  had  only  signed  on  the 
faith  of  an  alteration  being  made  in  one  of  its  terms. 

§  346.  In  the  last-mentioned  case  the  defendant  set  up 
the  collateral  contract ;  but  the  cases  go  much  further,  and 
show  that  the  plaintiff  may,  on  the  ground  of  fraud,  obtain 
the  benefit  of  a  collateral  parol  promise  which  the  person 
who  claims  under  the  written  contract  fraudulently  refuses 
to  recognize.  In  one  case  Lord  Thurlow  allowed  the  plain- 
tiff to  give  parol  evidence  that,  at  the  time  the  contract 

{V)  Mestaer  v.  Gillespie,  11  Ves.,  627.  {w)  14  Ves.,  519,  525. 

all  the  fruits  ?     Surely  not.     Courts  of  justice  would  be  blind,  indeed,  it  they 
could  permit  such  a  state  of  things." 

Fraud  must  be  at  the  time  of  the  sale.'\  In  Wheeler  v.  Reynolds,  66  N.  Y., 
227.  it  was  lield  that  where  fraud  was  relied  upon  in  a  purchaser  at  a  sherill  s 
sale,  to  make  such  purchaser  a  trustee  ex  maleficio,  that  it  must  be  found  at  the 
time  of  the  sale. 

Mortgage  properti/ frauchiknily  purchased.^  "But  even  in  this  class  of  cases 
so  important  it  is  to  maintain  the  utmost  confidence  in  the  efhcicncy  of  judicial 
sales,  the  purchaser  should  be  protected  against  all  pretenses  of  a  trust  by 
parol,  unless  his  ?H(//rt>(/('.5  be  proved  by  the  clearest  and  most  complete  evi- 
dence. But  where  such  demonstrative  proof  exists,  and  where  the  contract 
between  the  defendant  in  execution,  and  the  ]nirchaser,  is  not  of  such  a  charac- 
ter as  to  affect  injuriously  the  rights  of  creditors,  a  court  of  equity  will  frus- 
trate the  contemplatable  fraud  by  enforcing  the  contract  specitically  between 
the  parties."  Beaslev,  C.  J.,  in  Merritt  v.  Brown,  21  N.  J.  Eq.,  401;  see,  also, 
Green  v.  Ball  4  Bush,  586;  Combs  v.  Little.  3  Grei  n's  Ch.,  olO;  iMarlatt  v. 
Warwick,  18  K  J.  Eq.,  108;  S.  C,  10  id.,  480;  Rose  v.  Bates,  12  Mo.,  30. 


278         FIJV  ox  Sl'i:clFIC  rKlJFOKMAKCE  or  CONTRACTS. 

(vvliicli  was  subsequently  reduced  tf)  writing)  was  entered 
into,  an  undertaking  had  been  given  by  the  assignee  of  the 
lease  to  tlie  assignor  for  indemnity  against  tlie  rents  and 
covenants  ;  his  lordship  laying  down  that,  ^' where  the  ob- 
jection is  taken  before  the  party  execute  the  agreement, 
and  the  other  side  promise  to  ratify  it,  it  is  to  be  considered 
a  fraud  on  the  party  if  such  promise  is  not  kept.(rr) 

§  547.  So,  in  -the  case  of  transactions  which  are  really 
for  mortgages  or  charges,  if  the  written  instrument  be  in 
terms  absolute  and  have  been  obtained  on  a  promise  to  exe- 
cute a  defeasance,  or  if  the  clause  for  redemption  have  been 
fraudulently  omitted,  the  mortgagor  or  chargor  has  been 
allowed  to  come  to  the  court  and  to  reduce  the  absolute 
conveyance  to  a  mortgage  or  charge,  (j/) 

§  548.  So,  again,  in  Jervis  v.  Berridge, ( >")  where  the  plain- 
tiffs assigned  the  benefit  of  a  contract  to  the  defendant  upon 
certain  terms,  some  only  of  which  were  reduced  into  writing, 
it  was  held  that,  under  the  circumstances  of  the  case,  the 
memorandum  was  only  ancillary  to  the  verbal  contract,  and 
any  use  of  it  by  the  defendant  for  a  purpose  inconsistent 
with  the  verbal  contract  was  fraudulent.  Lord  Selborne,  in 
the  course  of  his  judgment, (a)  stated  the  principle  now  in 
discussion  in  words  which  have  already  been  quoted.  (Z>) 

§  549.  So,  again,  if  A.  have  in  his  hands  money  of  B., 
and  at  B.'s  request  lay  it  out  in  the  purchase  of  an  estate, 
A.  cannot,  on  the  ground  that  the  land  is  conveyed  to  him, 
claim  the  estate  as  his  own,  and  exclude  parol  evidence  that 
he  was  a  trustee  for  B.(c)' 

(X)  Pembcr  v.  Mathers,  1  Bro.  C.  C,  52.  (a)  L.  R.  8  (;h.,  360.  In  his  speech  in  the 
Cf  fincllinff  v  Th.-mas,  h.  R.  17  Eq  ,  303.  House  oi  L'^rds.  in  liussey  v.  Ilorne-Payne, 
where  the  plaintiff  failed  to  establish  tnecul-  4  App.  C  ,  323,  Lord  Selborr.e  expr-ssly  re- 
lateral  contract  alleged  by  hlni  afflrme(i  the  doctrine  laid  down  lu  the  quota- 

(»/)  1  Eq    Ca    Abr.,  20,  pi.  5;    Walker  v.  tion  relerred  to  in  the  text. 

Walker,  2  Atk.,  98;  England  V.  Codringt'.u,  (6)  Supra,  §  502.                        ,     t,„i     „ 

1  Eden,  169;  Williams  v.  Owen,  5  My.  &  Cr..  (c)  Per  Kindersley.  V.  C,  in  Lincoln  v. 

303.  306 ;  Lincoln  v.  Wright,  4  De  G.  &  J.,  16 ;  Wright,  28  L.  J .  Ch. ,  707  n. ;  S.  C  ,  on  appeal, 

Dougla.s  V.  Culverwell,  3  GllT.,  251;  S.  (J.,  4  4  De  G.  &  J.,  16      See  Ryall  v.  Kyall,  1  Atk  , 

De  G  F  &  I     20  59;  WilU.s  v.  Willis,  2  id  ,  71 ;  per  Grant.  M. 

(z)  L.  K.  8  Ch.,  351.  R  •  i"  Leuch  v.  Lench,  10  Ves.,  517. 


'  ImpUed  tnisf.-i  are  nof  tltOHe  to  inhtch  the  Siniute  of  Frauds  referx.']  Bigelow, 
J.,  in  Stone  v.  Hackett  (12  Gray,  227),  says:  "It  is  certainly  true  that  a  court 
of  equity  will  lend  no  assistance  toward  perfecting  a  voluntary  contract  or 
agreement  for  the  creation  of  a  trust,  nor  regard  it  as  binding,  so  long  as  it  re- 
mains executory.  But  it  is  equally  true  that  if  such  an  agreement  or  contract 
be  executed  by  a  conveyance  of  property  in  trust,  so  that  nothing  remains  to  be 
done  by  the  grantor  or  donor  to  comiilete  the  transfer  of  title,  the  relations  of 
trustee  and  cestui  que  trust  is  deemed  to  be  established,  and  the  equitable  rights 
and  interests  arising  out  of  the  conveyance,  though  made  without  consideration, 


I 


STATUTE   OF   FRAUDS,  ETC.  279 

§  550.  Ill  all  these  cases,  to  exclude  parol  evidence  and 
to  adjudge  specific  performance  of  tlie  contract  as  evidenced 
by  the  writing  alone,  would  be  to  work  the  very  mischief 
which  the  statute  was  intended  to  prevent,  viz.,  to  fix  the 
party  sought  to  be  charged  with  a  contract  which  he  never, 
in  fact,  entered  into.' 

§  551.  So,  again,  the  want  of  writing  could  not  be  set  up 
successfully  by  a  man  who  had  fraudulently  prevented  the 
writing  from  coming  into  existence.  (<?)  Thus,  where  the 
defendant,  on  a  treaty  for  the  marriage  of  his  daughter 
with  the  plaintiff,  signed  a  paper  comprising  the  terms  of 
the  agreement  arrived  at,  but  afterwards,  and  with  a  view 
to  rid  himself  of  the  obligation  imposed  by  it,  induced  his 
daughter  to  wheedle  the  plaintiff  to  give  up  the  writing 
and  then  to  marry  her — the  plaintiff  was  held  entitled  to 
relief  and  obtained  a  decree  on  the  ground  of  fraud.  ((^) 

§  552.  But  this  want  of  w^riting  must  be  due  to  fraud, 
and  not  to  mere  non-performance  of  a  contract  to  sign  a 
writing.  No  doubt  the  opposite  view  was  formerly  taken, 
and  it  was  thought  that  an  allegation  that  it  was  part  of 
the  parol  contract  between  the  contracting  parties  that  the 
contract  should  be  reduced  into  writing,  would  take  the  case 
out  of  the  statute,  on  the  ground  of  fraud.  Accordingly, 
w^here  a  bill  containing  such  an  allegation  was  met  by  a 
plea  of  the  statute.  Lord  North,  after  argument,  ordered 

(c)  Maxwell  v.  Lady  Montacute,  Prec.  Ch.,    &  G.,  115;  reversed  5  De  G.  M.  &  G,  41;  and 
536;  1  Eq.  Ca.  Ab  ,  19;  Whitchurch  v.  Bevis,    see  St-ry,  Eq.  Juris.,  §  768  (lOth  ed.) 
2  Bro.  C.  C,  565;  cf.  Wood  v.  Mldgl6y,2  Sm.        (rf)  Mullet  v.  Halfpenny,  cited  in  Peachey 

on  settlements,  82. 

will  be  enforced  in  clianceiy."  See,  also,  Kekewicli  v.  Mannina;,  1  De  G.  !M.  & 
G.,  176;  Jones  v.  Lock,  L.  R.  1  Ch.,  25;  Wason  v.  Colburn';  99  Ma.ss.,  342; 
Trapliagen  v.  Best,  67  N.  Y.,  80;  Chesler  v.  Dickerson,  54  id.,  1. 

Parol  eddence.']  Where  a  trust  has  resulted  by  implication  of  law,  parol  evi- 
dence may  be  relied  upon  to  establish  the  collateral  fact  from  which  a  trust  raa.y 
legally  result.     Church  v.  Sterling,  16  Conn.,  ob8. 

Equity  enforces  a  parol  trust  where  a  fraud  has  been  perpetrated,  in  order  that 
it  may  be  relieved,  by  raising  an  implied  trust.  It  treats  the  partj'  perpetrating 
the  fi-aud  as  a  trustee  because  he  is  ci'  inaieftcio  because  of  the  fraud.  ^Vheeler 
V.  Reynolds,  66  N.  Y.,  y27;  see,  also,  Hodges  v.  Howard,  5  R.  I.,  149;  Cannon 
V.  AVard,  8  Ga.,  245;  Jones  v.  McDougall,  32  Miss.,  179;  Hidden  v.  Jordan,  21 
Cal.,  92;  Cole  v.  Cole,  41  Md.,  301;  Wilton  v  Harwood,  23  Me.,  131;  McBur- 
ney  v  Wellmau,  42  Barb.,  390;  Martin  v.  JIartin,  16  B.  Mon.,  S;  Blodgett  v. 
Hfldreth,  103  Mass.,  484. 

'  An  agreement  need  only  be  signed  by  the  party  to  be  charged.  Hatton  v. 
Gray,  2  Ch.  Cas.,  164;  Seton  v.  Slade,  7  Ves.,  265;  Fowler  v.  Freeman,  9  id., 
351;  Martin  v.  Mitchell,  2  Sac.  &  JM.,  426;  Schneider  v.  Xorris,  2  31.  ct  S.,286; 
Shirley  V.  Shirley,  7  Blackf.,  452:  liogers  v.  Saunders,  16  3Ie.,  92;  Ives  v. 
Hazard,  4  R.  I.,  14;  Anderson  v.  Harotd,  10  Ohio,  399;  Wright  v.  King.  Har- 
ring.  Ch.,  12. 


280        FRY  ox  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

the  defendant  to  answer  so  much  of  the  bill  only  as  charged 
that  tlie  contract  was  to  be  put  into  writing. (e)  It  seems 
obvious,  however,  tliat  such  a  procedure  affords  a  most  easy- 
means  of  evading  the  intention  of  the  statute,  and  introduc- 
ing the  mischief  it  was  designed  to  remedy :  and  accord- 
ingly, tlie  law  is  clearly  established,  that  such  an  allegation 
does  not  withdraw  the  case  from  the  operation  of  the  statute, 
and  that,  after  a  parol  contract,  a  refusal  to  sign  a  written 
one  is  no  fraud  of  which,  the  court  can  take  cognizance.  (/) 
§  do*t.  The  same  principle  as  regards  fraud  was  once  con- 
sidered to  apply  to  marriage  contracts,  which  also  are  within 
the  fourth  section  of  the  statute.  In  Dundas  v.  Dutens,((7) 
Lord  Thurlow  decided  that  a  post-nuptial  settlement  recited 
to  be  made  in  pursuance  of  an  ante-nuptial  j)arol  control 
was  not  a  voluntary  settlement,  and  that  because  a  refusal 
to  perform  the  previous  contract  would  have  been  a  fraud; 
but  this  decision  is  in  effect  overruled  by  the  case  of  Warden 
V.  Jones,  (7^.)  where  Lord  Cranw^ortli  remarked  that,  were  the 
decision  in  Dundas  v.  Dutens  correct,  the  whole  p)olicy  of 
the  statute  would  be  defeated,  (z)' 

(e)  T.eakev.  Morris,  1  Dick.,  14;  S.  C.s.n.,  (g")  1  Ves.  Jun.,  196;  S.  C,  3  Cox,  235.  See, 

Leake  v.  Morrice,  2  Cas.  in  Ch.,  135;  Hollls  too,  Viscountess  Montacute  v.  Maxwell,  1  P. 

V.  Whiteing,  1  Vern.,  151;  Deane  v.  Izard,  1  Wnis  ,  620. 

id.,  159.  {k)  2  I)e  G.  &  J.,  76,  85. 

(/)  WJiitchurch  V.  Bcvis,  2Bro.  C.C.,565;  (i)  Cf.  Trowell  v.  Shenton,  8  Ch.  D.,  324, 

Wood  V   M  Id  j;  ley,  5  De  G.  ftl.  &  G  ,  41;  re-  where,  however,  the  question  turned  on  Lord 

Tcrsing  S.  C  ,  2  Sm.  &  Gif.,  115.  Tenterden's  Act. 

'  The  case  of  Montacute  v.  Maxwell  (1  P.  Wms.,  618),  is  an  important  case  on 
this  subject.  The  plaintiff  brought  a  bill  against  the  defendant,  her  husband, 
setting  forth  that  the  defendant,  before  her  intermarriage  with  him,  promised 
that  she  could  enjoy  all  her  own  estate  to  her  separate  use;  that  he  had  agreed 
to  execute  writings  to  that  effect,  and  had  instructed  counsel  to  draw  such  writ- 
ings, and  that  when  they  were  to  be  married,  the  writings  not  being  perfected, 
the  defendant  desired  that  this  might  not  delaj'  the  match,  because,  his  friends 
being  there,  it  might  shame  him;  but  engaged  that,  upon  his  honor,  she  should 
have  the  same  advantage  of  an  agreement  as  if  it  were  in  writing,  drawn  in 
fonn,  by  counsel,  and  executed  :  whereupon  the  marriage  took  place.  To  this 
bill  the  defendant  pleaded  the  Statute  of  Frauds  And  the  Lord  Chancellor 
said:  "In  cases  of  fraud,  equity  should  relieve,  even  against  the  words  of  the 
statute,  as  if  one  agreement  in  writing  should  be  proposed  and  drawn,  and 
another  fraudulently  and  secretly  brought  in  and  executed  in  lieu  of  the  former, 
in  this  or  such  like  cases  of  fraud,  equity  Avould  relieve;  but  where  there  is  no 
fraud,  only  relying  upon  the  honor,  word  or  promise  of  the  defendant,  the 
statute  making  these  promises  void,  equity  will  not  interfere ;  nor  were  the  in- 
stinictions  given  to  counsel,  for  the  preparing  of  writings,  material,  since  after 
they  were  drawn  and  engrossed,  the  parties  might  refuse  to  execute  them." 
But  an  entirely  different  view  of  a  very  similar  case,  and  more  in  conformity 
with  Dundas  v.  Dutens,  was  expressed,  in  this  country,  by  Mr.  Justice  Story, 
in  Jenkins  V.  Eldridge,  3  Story,  291.  There,  it  was  said  "that,  where  instruc- 
tions are  given  and  preparations  made  for  marriage  settlements,  and  the  woman 
is  persuaded  bj^  the  man  to  marry,  trusting  to  his  verbal  promise  to  complete 
them,  equity  ought  to  relieve  and  compel  performance. 


STATUTE   OF    FKAUDS,  ETC.  281 

§  534.  In  cases  of  wills  obtained  by  a  promise  to  dispose 
of  the  property  in  a  particular  way,  the  court  will,  notwitli- 
stfinding  the  language  of  the  Statute  of  Frauds  that  every 
will  must  be  in  writing,  and  the  language  of  the  wills  act  to 
the  same  effect,  give  effect  to  the  verbal  arrangement  by 
raising  a  trust  on  the  property  devised  or  bequeathed  by  the 
will.(y) 

§  5S5.  (4)  The  part  performance  of  a  contract  by  one  of 
the  parties  to  it  may,  in  the  contemplation  of  equity,  pre- 
clude the  other  pai-ty  from  setting  up  the  Statute  of  Frauds, 
and  thus  render  it,  although  merely  resting  in  parol,  capable 
of  being  enforced  by  way  of  specific  x:)erformance.' 

ij)  Podmorev  GunningJ Sim., G44;  Chester    v.  Urwick  (No.  3),  23  Beav.,  407;  McGormick 

V.  Grogan,  L.  R.  4  H.  L.,  82. 

^  That  a  part  performance  will  take  a  case  out  of  the  Statute  of  Frauds,  is  a 
position  supported  by  authorities  too  numerous  and  too  overpowering  to  admit 
of  its  being  treated  as  au  open  question.  Annan  v.  Merritt,  V3  Conn.,  478.  13ut 
in  Tennessee,  it  is  expressly  decided  that  part  performance  will  not  take  a  parol 
contract,  for  the  sale  of  lands,  out  of  the  statute.  Patton  v.  .McClure,  1  Mart. 
&  Yerg.,  833.  As  to  the  good  policy  of  admitting  exceptions,  sucli  as  pat 
performance,  to  the  provisions  of  the  Statute  of  Frauds,  see  Story's  Eq  Jur., 
§  7(55,  and  note  1. 

Part  performance.~\  "Nothing  in  this  title  contained  shall  be  construed  to 
abridge  the  powers  of  courts  of  equity  to  compel  the  speeitic  performance  of 
agreements  in  cases  of  part  performance  of  such  agreements."  This  is  the 
language  of  the  statute  in  Michigan,  Com.  Laws  of  Mich.,  1«71.  vol.  2,  p.  145"), 
ch.  16tj,  §  8;  Minnesota,  Stat,  of  Minn.,  187:^,  vol.  1,  p.  6i)2,  §  18;  Nebra.ska, 
Stat,  of  Neb.,  1873,  ch.  25,  §  6;  New  York,  Rev.  Stat,  of  N.  Y.  (6th  ed.),  vol. 
3,  p.  341,  §  10;  and  Wi.sconsin,  Stat,  of  Wis.,  1871,  vol.  2,  ch.  106,  §  10.  This 
has  long  been  the  settled  rule  in  England.  Lister  v.  Foxcraft,  Gibb.  Eq.  Rep., 
4;  O'Herhky  v.  Hedges,  1  Sch.  &  Lef.,  123;  Bond  v.  Hopkins,  id.,  433;  Warden 
V.  Jones,  23  Beav.,  487;  Kelley  v.  Webster,  10  Eng.  L.  &  Eq.,  517.  No  verbal 
contract  for  the  sale  of  lauds,  "or  any  interest  in  the  same,  except  leases  for  one 
year  or  less,  can  be  sustained  in  Alabama,  "unless  the  purchase  money,  or  a 
portion  thereof,  is  paid,  and  the  piu'chaser  be  put  in  possession  of  the  land  of 
the  seller."  Code,  1867,  p.  411,  §  1862.  Any  parol  agreement  to  be  valid  in 
California  for  the  sale,  or  any  interest  in  land,  except  leases  for  one  year,  must 
have  been  in  part  performed  by  the  part}'  seeking  to  enforce  it,  and  siich  part 
performance  must  have  been  accepted  by  the  other.  Code,  §  1741.  The  statute 
does  not  apply  in  Iowa,  "where  the  purchase  money,  or  any  part  thereof,  has 
been  received  by  the  vendor,  or  where  the  vendee,  with  the  actual  or  implied 
consent  of  the  vendor,  has  taken  and  held  possession  under  and  by  virtue  of  the 
contract,"  Code,  1873,  §  3663.  An  in.structive  case  on  the  question  of  part 
performance  of  contracts  in  relation  to  real  property,  as  well  as  a  summary  of 
the  cases,  will  be  found  in  Wright  v.  Pucket.  2  Gratt.,  370.  The  English  ami 
New  York  rule  has  been  adopted  in  several  of  the  States.  Downey  v.  Hotch- 
kiss,  2  Day,  225;  Wilde  v.  Fox,  1  Rand.,  165:  .Johnson  v.  Johnson,  6  id.,  37«); 
Ash  v.  Doggy,  6  Ind.,  259;  Hoen  v.  Simmons,  1  Cab,  U'J;  Arguellov.  Edinger, 
10  id.,  150;  Kidder  v.  Barr,  35  N.  H.,  235;  Hawkins  v.  Hunt.  14  111.,  42;  Gil- 
more  V.  John.son,  14  Ga.,  683;  Johnson  v.  Hubbell,  10  N.  J  Eq.,  332;  Eyre  v. 
Eyre,  19  id.,  102  In  Pennsylvania,  the  agreement  is  not  avoided  by  the  stat- 
ute, its  effects  are  merely  restrained.     Tripp  v.  Bishop,  56  Pa.  St.,  424. 

Pari  performance  no  defense  in  the  foUotoincj  States.^  Maine,  "it  appears  to 
have  been  the  intention  not  to  authorize,  under  any  circumstances,  a  decree  for 
the  specific  performance  of  a  contract  not  made  in  writing."     Shepley,  J.,  iJi 


282         FKY  (».\  SPECIFIC  PKKFOrv.ArANCK  UK  COXTKACTS. 

5J  550.  Tliis  exception  is  ba^ed  on  a  principle  of  common 
fairness,  on  the  view  that  it  is  unjust  in  a  man  wlio  has  made 
a  bargain  with  another,  to  alloAv  that  other  to  act  upon  it,  and 
then  to  set  up  tlie  want  of  a  formality  as  a  bar  to  its  com- 
plete performance  by  himself.  The  principle  is  the  same  as 
that  wliich  gave  rise  to  the  real  contract  in  Roman  law,  that 
being  a  contract  in  wiiich  the  connection  between  the  parties 
was  clothed  with  obligation,  and  so  ceased  to  be  nudum 
jiactum,  by  force  of  the  actual  delivery  of  the  subject  of  the 

Wiltou  V.  Ilarwood,  23  Me.,  131.  Massachusetts,  Buck  v.  Dowley.  IG  Gray, 
5.i5;  Abell  v.  Calderwood,  4  Cal.,  90;  Patterson  v.  Graton,  47  Me.,  308;  Skip- 
witt  V.  Dodd,  24  Mass..  487;  Mississippi,  Box  v.  Stamford,  13  Sm.  &  Marsh., 
93;  Beaman  v.  Buck,  9  id.,  207;  Hariston  v.  Jandon,  42  Miss.,  380;  North 
Carolina,  Ellis  v.  Ellis,  1  Dev.  Eq.,  345;  Barnes  v.  Teague,  1  Jones'  Eq.,  277. 
Under  a  prayer  for  general  relief  equity  will,  however,  decree  an  accounting. 
Baker  v.  Parson,  1  Dev.  &  Batt.  Eq.,  281;  Alhea  v.  Griffin,  2  id.,  9;  Lane  v. 
Neilson,  1  Jones'  Eq.,  339;  Tennessee,  Ridley  v.  McNairey,  2  Humph.,  174. 
On  the  general  question  of  part  performance,  see  Allen  v.  Chambers,  4  Ired. 
Eq..  125;  Lucket  v.  Williamson,  37  Mo.,  388;  Brooks  v.  Wheelock,  11  Pick., 
439;  Jacobs  v.  Peterborough  B.  R.  Co  ,  8  Cush.,  223;  Hunt  v.  Roberts,  40 Me., 
187.  "  If  judges  who  allowed  themselves  originally  to  be  seduced  from  it  by  the 
hardship  of  particular  cases  had  never  swerved  the  statute  itself,  and  the  neces- 
sity of  adhering  to  its  provisions,  would  have  become  so  well  known  that  many 
of  those  distressing  cases  arising  from  parol  contracts  never  would  have  oc- 
curred, and  at  all  times,  as  well  now  as  soon  after  enacting  the  law,  there  would 
have  been  less  hardship  and  injustice  if  its  provision  had  been  strictly  followed." 
Coulter,  J.,  in  Fry  v.  Shipler,  7  Pa.  St.,  91. 

Part  performance  not  recogni'ed  at  laic.'\  The  doctrine  of  part  performance  is 
entirely  confined  to  equity  courts;  at  law,  in  order  that  a  case  rany  be  taken  out 
of  the  operation  of  the  Statute  of  Frauds,  there  must  be  complete  performance 
by  one  of  the  parties  to  the  contract.  Lane  v.  Shackelford,  5  N.  H.,  130;  Pat- 
terson V.  Cunningham,  12  Me.,  506;  Norton  v.  Preston,  15  id.,  14;  Allen  v. 
Booker,  2  Stew.,  21;  Johnson  v.  Hanson,  6  Ala.,  351 ;  Payson  v.  AYest.  Walker, 
Miss.,  515;  Thompson  v.  Gould,  20  Pick.,  134;  Adams  v.  Towusend,  1  Met., 
4S3;  Seymour  v.  bavis.  2  Sandf.,  239;  Duncan  v.  Blair,  5  Denio,  196;  Thomas 
v.  Dickinson,  14  Barb.,  90;  Eaton  v.  Whittaker,  18  Conn.,  22;  Sailor  v.  Gam- 
briel.  Smith  (lud.),  82.  An  instructive  case  on  this  questian  is  Squire  v.  Whip- 
ple, I  Vt.,  73. 

Reason  for  permitting  part  perfornianee  to  operatc.'\  "  If,  therefore,  it  be  clearly 
shown  what  the  agreement  was,  and  that  it  has  been  partly  performed,  that  is, 
that  an  act  has  been  done,  not  a  mere  voluntary  act  or  merely  introductory  or 
ancillary  to  the  agreement,  by  a  part  execution  of  the  agreement,  and  which 
would  not  have  been  done  unless  on  accoimt  of  the  agreement — an  act,  in  short, 
unequivocally  referring  to.  and  resulting  from,  the  agreement,  and  si»ch  that 
the  party  would  suffer  an  injur}'  amounting  to  fraud  by  the  refusal  to  execute 
that  agreement,  in  such  case  the  agreement  will  be  deci'eed  to  ])e  specifically 
performed."  Maddock's  Cli.  Pr.,  vol.  1,  p.  301;  see,  also,  Buckmaster  v. 
Hanop,  7  Ves.,  346;  Mundy  v.  Jolliffe,  5  My.  &  Cr.,  177;  Meach  v.  Stone,  1 
D.  Chip.  (Vt.),  182;  Heth  v.  Wooldridge,  6  Rand,  605;  Hamilton  v.  Jones, 
3  Gill.  &;  Johns  .  127;  Merethen  v.  Andrews,  44  Barb.,  200;  Netherbw  Rip'ey, 
21  Te.K.,  434;  Mas-^n  v.  Blair,  33  111.,  194;  Nve  v.  Taggart,  40Vt.,'295;  Glass 
V.  Ilulbert,  102  Mass.,  35;  Bremer  v.  Bremer";  19  Ala^  481;  Farrar  v.  Patton, 
20  Mo.,  81;  Dickerson  v.  Cheisman,  28  Me.,  134;  Hare  v.  Goodrich  33  N.  H., 
3i;  Weber  v.  Marshall,  19  Cal.,  447;  Moore  v.  Small.  19  Pa.  St..  461 ;  Pond  v. 
McWhorter,  50  Tex  ,  5f>2;  Williams  v.  3Iorris,  5  Otto,  457;  Evans  v.  Lee,  12 
Nev.,  393;  Ryan  v.  Dox,  34  N.  Y.,  307. 


STATUTE    OF   FRAUDS,  ETC.  28B 

contract.  "In  tlie  real  contract,"  says  Sir  Henry  Maine, 
"performance  on  one  side  is  allowed  to  im})()se  a  legal  duty 
on  the  otlier,  evidently  on  ethical  grounds." (/i) 

§  557.  In  order  thus  to  withdraw  a  contract  from  the 
operation  of  the  statute,  several  circumstances  must  concur: 
1st,  the  acts  of  part  performance  must  be  such  as  not  only 
to  be  i-eferable  to  a  contract  such  as  that  alleged,  but  to  be 
referable  to  no  other  title :  2ndly,  they  must  be  such  as  to 
render  it  a  fraud  in  the  defendant  to  take  advantage  of  the 
contract  not  being  in  writing  :  3rdly,  the  conti-act  to  which 

(k)  Ancient  Law  (6th  ed  ),. ^2.    See,  also,  pige  338. 

Wftat  must  be  sliown,  in  order  that  part  performmice  may  take  agreement  out  of 
the  operation  of  the  statute.']  Where  part  performance  is  relied  upon,  it  must 
be  something  performed  with  the  actual  or  constructive  knowledijce  and  assent 
of  the  other  party.  It  must  directly  refer  to  the  agreement,  and  be  a  partial 
execution  of  it ;  and  the  party  who  seeks  to  complete  the  same  must  be  dam- 
aged, if  it  is  not  enforced.  Anderson  v.  Chick,  1  Bailey's  Eq.,  118;  Smith  v 
Smith,  1  Rich.'s  Eq..  130;  Hatcher  v.  Hatcher,  1  McMull.'s  Eq.,  811;  Woolf 
V.  Frost,  4Sandf.'s  Ch.,  Ti;  Eckert  v.  Eckert,  3  Prim.  &  Watts,  333;  Dale  v. 
Hamilton,  5  Hare.  381;  Buckmaster  v.  Hanop,  13  Ves.,  4.'56;  Lacon  v.  Meetius, 
3  Atk.,  1;  Powell  V.  Lovegrove.  8  De  G.  M.  &  G.,  357;  Eaton  v.  Whiltaker, 
18  Conn.,  22:i;  Kidder  v.  Barr,  35  N.  H.,  235;  Moale  v.  Buchaunan,  11  Gill.  & 
John.,  344;  Morphett  v.  Jones,  1  Swaust..  172;  Peckham  v.  Barker,  8  R.  I.,  17; 
Richmond  v.  Foote,  »  Lans..  244;  Hedrick  v.  Hern,  4  W.  Ya.,  G20;  Welsh  v. 
Bayard,  21  N.  J.  Eq.,  18G;  Lester  v.  Kinne,  37  Conn.,  9;  Billiugslea  v.  Ward, 
33  Md  ,  48;  Wright  v.  Puckett,  22  Gratt  ,  370;  Davenport  v.  Mason,  15  Mass., 
84;  Stoddart  v.  Luck,  4  Md.  Ch.,  475;  Semmes  v.  Worthiugloii,  38  Md.,  289. 

Part  performance  must  have  sole  relation  to  the  agreement.'\  In  order  that  a 
parol  contract  for  the  sale  of  land  may  be  removed  from  the  operation  of  the 
Statute  of  Frauds,  the  evidence  must  establish  the  following  facts:  The  bounda- 
ries of  the  land  audits  quality;  the  amount  of  consideration  must  be  fixed; 
possession  must  be  taken  under  the  agreement  soon  after  it  was  made;  change 
of  possession  must  be  continuous,  notorious  and  exclusive,  and  the  part  per- 
formance must  be  such  that  he  cannot  be  reasonably  compensated  in  damages. 
Hart  V.  Carroll,  85  Pa.  >t.,  508.  The  acts  of  part  performance  which  will  be 
sufficient  to  prevent  the  opei-ation  of  the  statute  must  be  certain,  and  refei-  to 
an  agreement  of  which  they  form  a  part,  and  which  they  partially  execute; 
they  must  have  no  other  end  in  view  than  the  contract  in  question.  Wheekr 
V.  Reynolds,  GO  N.  Y.,  227;  Thyue  v.  Lord  Glengall.  (i  H.  of  L.,  153;  Ralhbuu 
V.  Rathbun,  C.  Barb.,  98;  Mundorff  v.  Howard,  4  ild.,  45!J;  Aday  v.  Echols, 
18  Ala.,  353:  Whitridse  v.  Parkhurst,  20  Md  ,  (52 ;  Brema  v.  Wilson,  17  N.  J. 
Eq.,  18<»;  Smith  v.  Crandall,  20  Md.,  482;  Bnntou  v.  Smith,  -0  :<-  H.,  352; 
Charpiot  v,  Sigersou,  25  Mo.,  63;  Wallace  v.  Brown,  10  N  J.  E.|.,  3U8;  Cole 
V.  Potts,  id.,  67;  Williamson  v.  Williamson,  4  Iowa,  279;  Eyre  v.  Eyre,  19  N.  J. 
Eq.,  102;  Petrick  v.  Petrick,  19  id.,  3;-!9;  Goodhue  v.  Barnwell,  Rice's  Eq.,  l!)8; 
Owiugs  v.  Baldwin,  8  Gill.,  337;  Carlisle  v.  Flemming,  1  Harring.  (Del.),  421. 

The  question  of  assent  should  he  carefully  considered.']  A  contract  cannot  be 
predicated  upon  a  chance  or  loose  conversation,  notwithstanding  the  ])arties 
may  seem  to  have  come  to  an  agreement  The  que.-tion  of  assent  shou'nl  be 
carefuUv  considered  as  it  is  important;  ail  the  attendant  circumstances  should 
be  Aveidied  as  well.  The  following  instruction  was  held  sound,  and  sustained. 
"If  the  jury  believe  that  all  the  terms  of  the  contract  were  not  finally  arranged 
the  first  day,  but  that  the  entire  contract  was  to  be  arranged  and  reduced  to 
writing  the  next  day,  there  was  no  binding  contract  between  the  parties  unless 
a  contract  was  proved  to  have  been  made  on  the  next  day,  or  on  some  subse- 
quent day."     Per  curiam,  Brown  v.  Finne}',  53  Pa.  St.,  373. 


284         FRY  ON  SPECIFIC  PEIlFOmrANCE  OF  CONTRACTS. 

tliey  refer  must  be  such  as  in  its  own  nature  is  enforceable 
by  the  court :  an-l  4thly,  th>^ve  TTiiist  l)e  2:)roper  parol  evidence 
of  the  contract  which  is  let  in  by  the  acts  ofpart  i)erfoniiMnce. 

jj  058.  First,  then,  it  seems  evident  that  all  that  can  be 
gathered  from  acts  of  pjart  performance  is  the  existence  of 
some  contract  in  pursuance  of  which  they  are  done,  and  the 
general  character  of  the  contract :  they  cannot,  unless  pos- 
sibly in  some  very  singular  case,  be  themselves  sufficient 
evidence  of  the  particular  contract  alleged,  because  they 
cannot  in  themselves  show  all  the  terms  of  the  contract 
from  which  they  flow.  They  may  be  evidence  of  an  un- 
known contract,  but  the  making  known  what  that  contract 
is,  must  be  the  result  of  the  evidence  which  the  acts  in 
question  are  allowed  to  introduce.  (Z)  It  cannot  be  denied, 
that  there  is  some  want  of  exactitude  in  the  statements 
sometimes  made  in  this  respect,  as,  for  instance,  where  it  is 
said  that  the  acts  must, be  referable  to  the  alleged  contract ; 
and  Lord  Redesdale  seems  to  have  held  that,  to  admit  parol 
evidence,  the  part  performance  must  be  such  as  to  show  the 
very  same  contract  as  the  plaintiff  alleged.  So,  that  in 
a  case  where  the  plaintiff  stated  a  parol  contract  for  a 
lease  for  three  lives,  and  payment  of  rent  in  part  per- 
formance, and  the  defendant  admitted  a  contract,  but  for 
one  life  and  not  for  three,  his  lordship  said  that  the  Statute 
of  Frauds  put  it  out  of  the  power  of  the  court  to  execute 
the  contract  for  the  lease  for  three  lives,  the  part  perform- 
ance being  perfectly  consistent  with  the  contract  alleged  by 
the  defendant,  and  that,  therefore,  there  was  no  case  to  ad- 
mit proof  of  a  further  contract,  (m) 

§  550.  The  true  principle,  however,  of  the  operation  of 
acts  of  part  performance  seems  only  to  require  that  the  acts 
in  question  be  such  as  must  be  referred  to  some  contract, 
and  may  be  referred  to  the  alleged  one  ;  that  they  prove 
the  existence  of  some  contract,  and  are  consistent  with  the 
contract  alleged.  This  is  very  well  illustrated  by  a  case  in 
the  common  pleas  on  the  17th  section  of  the  Statute  of 
Frauds,  by  which  acceptance  is  treated  as  such  an  act 
of  part  performance   as  disp>enses   with   the   necessity  of 

(0  SeeperLorfl  Vlvanlev,  M.  R  ,  in  Forster       (m)  Limlsav  v.  Lynch,  2  Seh.  &  Lef.,1,8. 
V    Hale,  3  Ves.,  71'2;  per  Wigram,  V.  C,  in    See  infra,  §  613. 
Dale  V.  Haiiiiltoii,  5  Ua.,  381. 


STATUTE   OF   FRAUDS,  ETC.  28.") 

writing,  (tz)    It  was  there  held  that  bare  acceptance  of  the 
goods  by  the  vendee  was  sufficient  to  satisfy  that  section 
of  the  statute,  so  that,  although  the  vendee,  immediately 
after  accepting  them,  stated  that  he  did  so  on  terms  differ- 
ent from  those  on  which  the  vendor  delivered  them,  yet  the 
acceptance  having  established  the  fact  of  a  contract  of  sale, 
parol  evidence  of  its  terms  was  admissible.     It  was  there 
strongly  urged  that  tlie  acceptance  must  be  equivalent  to  a 
memorandum  in  writing,  and  must  show  all  the  terms  of 
the  contract ;  but  the  doctrine  was  denied  by  the  learned 
judges,  both  during  the  argument  and  by  their  decision  of 
the  case.    Williams,  J.,  in  the  course  of  his  judgment,  said, 
"The  legislature  has  thought  that  where  there  is  a  fact  so 
consistent  with  the  existence  of  a  contract  of  sale  as  the 
actual  acceptance  of  part  of  the  goods  sold,  the  necessity 
of  a  written  evidence  of  the  contract  might  safely  be  dis- 
pensed with.     But  it  is  clear  that  it  was  not  meant  to  go  to 
all  the  terms  of  the  contract ;  and  that  acceptance  is  no  evi- 
dence of  the  price,  but  only  establishes  the  broad  fact  of 
the  relation  of  vendor  and  vendee.     So,  where  there  is  proof 
of  part  performance,  the  jury  must  settle  all  the  other  facts 
that  go  to  make  up  the  contract,  "(o) 

§  360.  In  like  manner  Mr.  Austin,  in  one  of  his  Frag- 
ments, has  called  attention  to  the  "distinction  between  such 
solemnities  of  a  contract  as  are  merely  evidence  of  a  con- 
tract, and  such  as  are  evidence  of  a  contract  and  of  its 
terms:'  "Earnest,  for  instance,"  he  adds,  "is  merely  evi- 
dence that  a  contract  was  made  :  its  subject,  its  terms,  etc., 
must  be  established  by  evidence  allunde:\iS) 

§  dGl.  To  make  the  acts  of  part  performance  effective  to 
take  the  contract  out  of  the  Statute  of  Frauds,  they  must 
be  consistent  with  the  contract  alleged  and  also  such  as  can- 
not be  referred  to  any  other  title  than  a  contract,  nor  have 
been  done  with  any  other  view  or  design  than  to  X)erform  a 
contract  \{q)  therefore,  if  a  tenant  in  possession  sue  for  the 
specific  performance  of  an  alleged  contract  for  a  new  lease, 
the  mere  fact  of  his  continuance  in  possession  will  have  no 
weight  as  an  act  of  part  performance  of  the  contract,  being 

(n)  Tomkinson  v.  Stalght,  17  C  B.,  697.  (?)  Gunter  v.  Halscy,  Ambl..  686.  Consider 

(o)  17  C.  U.,  707.  Trice  v.  Salusbury,  32  Beav.,  44b. 

(p;  Lectures  (.3d  ed.),  940. 


286         FRY  ON  SPKCIFIC  PEIIFMIJ-MAXCE  OF  COXTUACT.S? 

referable  to  liis  cliaracter  ns  tenant. (r)  Where  a  tenant 
untler  a  term  alleged  the  rebuilding  of  a  xmrty-wall,  which 
was  in  a  ruinous  state  during  his  term,  as  part  x^erformance 
of  a  contract  by  liis  landlord  to  grant  a  renewed  term  :  it 
was  held  that  the  act  was  equivocal,  as  it  might  have  been 
done  by  him  in  respect  of  his  new  title  under  the  old  as  well 
as  under  the  alleged  new  term. (5)'  The  cases  in  which  pos- 
session is  an  act  of  part  performance  will  be  considered 
IDresently.(Y) 

§  SGH.  Secondly,  the  principle  upon  wdiicli  the  court 
exercises  jurisdiction  in  adjudging  specific  x>erformance  of 
parol  contracts  followed  by  part  performance,  is  the  fraud 
and  injustice  which  would  result  from  allowing  the  party 
chai'ged  to  refuse  to  ])erform  his  part,  after  performance  by 
the  other  upon  tlie  faith  of  the  contract  and  wdth  the  knowl- 
edge of  the  party  charged  :{tc)  and  this  j^rinciple  extends 
not  only  to  contract  w^liich,  but  for  such  part  performance, 
would  be  void  by  reason  of  the  Statute  of  Frauds,  but  also 
to  such  as,  being  entered  into  by  corporations,  are  invalid 
for  want  of  their  corporate  seal.(??) 

§*»<>!$.   "Courts  of  equity,"  said  Lord   Cottenham,(?o) 

(r)  Wills  V    Stradling-,  3  Ves.,  378     See,  (0   Infra,  §  576  et  seq 

too.  per  Lord  Eulon  in  Ex  parte  Hooper,  19  (m)  Per  Grant,  M.  R.,  in  Buckmaster  v.  Har- 

i(l.,479;  per  Plumer,  M.  K.,  in  Morphett  v.  rop,  7  Ves.,  346. 

Jones,  1  Sw,  181;  5  Vin,  Abr  ,  323,  pi.  41;  (v)  See  infra,  §  622,  and  Steevens' Hospital 

Phillips  V.  Aldenon,  24  W.  K.,  8;  and  Brm-  v.  Dvas,  15  Ir.  Ch.  R.,  4'».i,  421. 

nan  v.  Boiton,  2  Dr.  &  War.,  349.  (w)  In  Mundy  v.  Jolliffe,  5  My.  Cr.,  177. 

(s)  Frame  v.  Dawnon,  14  Ves.,  386. 

'  la  Crocker  v.  Iliggiu.s  (7  Conn.,  342),  it  is  decided  that  an  agreement  within 
the  Statute  of  Frauds,  carried  into  execution  on  one  part  by  acts  performed 
■with  a  irieic  to  the  af/reement  claimed,  is  thereby  taken  out  of  the  statute,  and  may 
be  proved  by  parol  evidence.  It  was  held,  in  Harris  v.  Knickerbacker  (5 
"Wend.,  68S),  that  an  act  alleged  as  part  performance  must  be  such  as  would 
not  have  been  done,  except  on  the  contract.  In  Carlysle  v.  Fleming  (1  liar- 
ring.  Ch.,  421),  it  is  said  that  the  acts  alleged  must  appear  unequivocally  to  have 
been  done  in  pursuance  of  the  contract.  Ellis  v.  Ellis  (I  Dev.  Ch.,  lii>  ),  is 
almost  a  repetition  of  the  words  used  in  Gunter  v.  Ilalsey,  cited  in  the  text.  In 
that  case  it  is  said,  tliat  an  act  under  a  parol  contract  must  l)e  of  such  a  nature, 
in  order  to  take  a  case  out  of  the  statute,  as  a  part  performance,  it  could  not 
have  been  done,  except  witii  reference  to  the  contract.  In  Anderson  v.  Chick 
(1  Bailey's  Ch.,  11«).  it  is  said  that  the  act  claimed  as  part  performance  must 
have  been,  and  intended  to  have  been,  done  in  pursuance  of  the  contract.  In 
order  to  show  part  performance  of  a  contract  to  convey  land,  the  claimant's 
pos.session  must  be  referable  to  the  agreement  to  convey.  Jervis  v.  Smith,  1 
Hoff.  Ch.,  470.  To  take  a  case  out  of  the  statute,  on  the  ground  of  part  per- 
formance, it  is  held,  in  Fiiilips  v.  Thomp.son  (1  .John.  Ch.,  181),  that  the  con- 
tract must  be  clearly  proved,  and  the  act  must  be  in  part  performance  of  that 
particular  contract.  Lord  v.  Underdunk  (1  Sandf.  Ch.,  4C),  is  precisely  a 
parallel  case  with  .Jervis  v.  Smith,  already  cited.  See  Smith  v.  Underdunk,  1 
Sandf.  Ch.,  57i);  Byrne  v.  Romaine,  2  Edw.  Ch.,  445;  Casler  v.  Thompson, 
3  Green's  <'h.,  5!i;  MclMurtrie  v.  Bennett,  Harring.  Ch.,  124;  Hatcher  v  Hatcher, 
1  Mc^ilullan's  Ch.,  811. 


•  STATUTE    OF   FRAUDS,  ETC.  287 

"  exercise  their  jurisdiction,  in  decreeinc;  specific  perform- 
ance of  verbal  agreements,  where  fhere  has  been  part  per- 
formance, for  the  ]mi-pose  "f  preventing  the  great  injustice 
which  would  arise  from  permitting  a  party  to  escai)e  from 
the  engagements  he  has  entered  into,  upon  tlie  ground  of  the 
Statute  of  Frands,  after  the  other  party  to  the  contract  has, 
upon  the  faith  of  such  engagement,  expended  his  money  or 
otlierwise  acted  in  execution  of  the  agreement.  Under  such 
circumstances,  the  court  will  struggle  to  prevent  such  injus- 
tice from  being  effected ;  and,  with  that  object,  it  has,  at 
the  hearing,  when  the  plaintiff  has  failed  to  establish  the 
precise  terms  of  the  agreement,  endeavored  to  collect,  if  it 
can,  what  the  terms  of  it  really  were." 

§  564.  Such  being  the  principle  on  which  the  court 
acts,  it  follows  that,  wherever  the  acts  of  the  party  to  be 
charged  have  caused  no  change  of  circumstances  in  the 
other  party,  (rr)  and  wherever  the  acts  of  part  performance 
by  the  one  are  not  such  as  to  render  refusal  by  the  other 
party  to  perform  the  contract  a  fraud  in  him,  however 
clearly  they  may  evidence  the  existence  of  a  contract,  there 
the  jurisdiction  in  question  can  have  no  application;  and  this 
may  be  the  case  either  from  the  character  of  the  person  per- 
mitting the  acts,  or  from  the  nature  of  the  acts  themselves. 
§  565.  From  what  has  been  said,  it  appears  that  the  acts 
of  part  performance  must  in  all  cases  be  done  by  the  person 
asserting  the  contract  with  the  knowledge  of  the  person 
sought  to  be  charged  that  the  acts  are  being  done  and  are 
being  done  on  the  faith  of  the  contract;  without  such  knowl- 
edge there  would  be  neither  injustice  nor  fraud. 

§  566.  On  the  ground  that  the  character  of  the  person 
permitting  the  nets  prevented  the  notion  of  fraud,  it  has 
been  decided  that  where  a  plaintiff  seeks  to  enforce  against 
a  remainderman  a  parol  contract  entered  in!o  between  the 
plaintiff  and  the  tenant  for  life,  acts  of  part  performance 
which  would  have  bound  the  tenant  for  life  will  not  bind 
the  remainderman,  unless  it  can  be  shovrn  that  he  permitted 
the  acts  of  the  plaintiff  with  a  knowledge  of  the  contract 
entered  into  by  the  tenant  for  life.(?/)     For  to  constitute 


in 
( 
Redesdale  in  Shannon  v.  Uradfctrett,  1  irca.    sou. 


28S        FIIY  ox  SPECIFIC  PERFORMANCE  OF  CONTRACT^. 

fraud,  tliere  must  coincide  in  one  and  the  same  person 
knowledge  of  some  fact  and  conduct  inequitable  having 
regard. to  such  knowledge.  And  again,  on  the  same  princi- 
ple, where  the  acts  are  those  of  persons  not  parties  to  the 
contract,  they  will  not  be  binding ;  so  that,  for  instance, 
acts  done  by  arbitrators  towards  the  performance  of  their 
duty,  are  not  part  performance  of  a  parol  contract  for  a 
compromise  and  division  of  estates  by  arbitrators. (^) 

§  567.  From  the  nature  of  the  act  it  follows,  that  though, 
as  we  shall  hereafter  see,  it  has  been  a  question  how  far  the 
acceptance  of  part  of  the  iDurchase  money  binds  the  ven- 
dor, the  payment  of  this  on  the  part  of  the  purchaser  can 
in  no  wise  bind  him,  because  to  refuse  to  complete  the  con- 
tract after  paying  "jDart  of  the  purchase  money,  would  be 
no  fraud  upon  the  seller,  but  his  own  loss."(ct)  The  ques- 
tion was  raised  in  a  case  where  the  co-heirs  of  a  purchaser 
sought  the  enforcement  of  the  contract  against  his  personal 
representatives,  and  set  uj)  his  i^art  payment  as  a  part  per- 
formance, making  it  a  binding  contract  ;(6)  but,  on  the 
ground  above  stated,  Grant,  M.  E,.,  decreed  against  the  claim 
of  the  heirs. 

§  568.  Upon  the  same  principle  it  seems  doubtful  w^hether 
any  acts  which  admit  of  alternative  remedies,  one  by  the  e:^e- 
cution  of  the  contract  and  another  by  some  other  means,  as, 
for  instance,  a  compulsory  taking  under  the  lands  clauses 
consolidation  act,  can  be  taken  as  part  performance ;  be- 
cause there  is  no  fraud  on  the  other  party  if  the  remedy 
other  than  that  by  execution  of  the  contract  be  pursued,  (c) 

§  569.  Thirdly,  the  contract  which  the  acts  of  part  per- 
formance allow  to  be  set  up  by  parol  evidence  must  be  of 
such  a  nature  as  that  the  court  would  have  had  jurisdiction 
to  enforce  it  specifically,  if  it  had  been  in  writing.  In  this 
respect  the  jurisdiction  of  the  high  court  is  the  same  as  that 
of  the  court  of  chancery.  The  rule  in  the  latter  court  was 
that  where  tliere  was  jurisdiction  in  the  original  subject 
matter,  viz.,  the  contract,  the  want  of  waiting  would  not 
deprive  the  court  of  it,  where  there  was  part  performance. 
But  the  want  of  writing  could  not  itself  be  made  the  ground 

(z)  Cnoth  V.  JacksoB,  6  Ves.,  12.  (c)  See  per  Lord  Cranworth  iu  Morgan  v. 

(a)  7  Ves.,  345.  MUman,  3  De  (i.  M.  &  G.,  35. 

(6)  Buckinaster  v.  Harrop,  7  Ves.,  341;  S. 
C,  on  appeal,  13  id.,  456. 


STATUTE    OF   FEAUDS,  ETC.  289 

of  jurisdiction ;  for,  if  that  were  so,  all  parol  contracts  re- 
quired by  the  Statute  of  Frauds  to  be  in  writing,  and  in 
part  performed,  might  liaVe  been  enforced  in  equity,  which 
was  not  the  case.  Accordingly,  a  demurrer  to  a  bill  for 
work  and  labor  done,  alleging  fraud  and  part  performance, 
was  allowed  by  Lord  Cottenham.((^)' 

§  570.  This  principle  is  illustrated  by  ca-es  in  which  tliere 
has  been  a  want  not  of  writing,  but  of  a  seal  Thus,  where 
the  plaintiff  stated  a  claim  against  a  company  for  work  and 
labor  done  on  the  estate  of  the  company,  and  alleged  that, 
as  the  contract  was  not  under  seal,  and  as  the  company 
claimed  the  legal  estate  in  the  land,  he  had  no  remedy  ex- 
cept in  chancery,  a  demurrer  by  the  company  to  tlie  plain- 
tiff's bill  was  allowed. (d) 

§571.  So,  again,  where  the  engagement  is  of  an  hon- 
ed) Kirk  V    Bromley  Union,  2    Ph  ,  640.    original  jurisdiction  in  respect  of  building 
Tlie  case  of  Pembroke  v.  Tliorpe  (S  Sw.,  437,    contracts.    See  supra,  §  76. 
n.),  may  appear  at  variance  with  ihis  view,        (e)  Crampton  v.  Vania  Kailway  Co  ,  L.  R, 
but  will  be  reconciled  bv  con8i<lerinjr  that    7  Ch  ,  £62. 
Lord  Hardwicke  held  the  court  to  have  an 

>  Valuable  improremenU  made  by  vendee  upon  real  property  under  a  contract  for- 
its  purcJia^e.]  It  is  a  well-settled  rule  that,  wliore  possession  has  been  surren- 
dercd  under  a  parol  contract,  and  the  vendee  has  entered  and  made  valuable 
improvements,  which  have  enhanced  the  value  of  tlie  property,  that  act  consti- 
tutes a  part  performance  Avhich  will  take  the  case  out  of  the  operation  of  the 
Statute  of  Frauds.  Wills  v.  Stradlinii-,  :^  Ves.,  878;  Savage  v.  Foster,  5  Yin. 
Abr.,  524;  Stockley  v.  Stocklev,  1  V.  &  B.,  28;  Sutherland  v.  Brijrs,  1  Hare, 
26;  Mundy  v.  Joliffe,  5  My.  &"<  r.,  167;  Toole  v.  Medlicott,  1  Ball  &  B..  393; 
Surcome  v.  Pinniger,  3  De  G.  M.  &  G.,  571;  Newton  v.  Swazey,  8  K  H.,  9; 
Annara  v.  Merritt.  13  Conn.,  478;  Tiltcn  v.  Tilton,  9  N.  H.,  385;  Dugan  v. 
Colville,  8  Tex.,  126;  Blakely  v.  Ferguson,  3  Eng.  (Ark.),  272;  Grant  v.  Ram- 
sey, 7  Ohio  St.,  157;  Casler  v.  Thompson,  3  Green's  Ch.,  59;  Kidder  v  Barr, 
35  K  H.,  236;  Mason  v.  Wallace,  3  McLean,  148;  Saier  v.  Hill,  10  Ind.,  176; 
Minis  V.  Lockett,  33  Ga  ,  9:  Cuuiminos  v.  Gil!,  <j  Ala.,  56!;  W  illiston  v.  Wil- 
liston,  41  Barb..  63o;  Hoffman  v.  Fett,  39  Cal.,  109;  Despain  v.  Carter,  21  Mo., 
331;  Green  v.  Finn,  35  Conn.,  178;  Netherby  v.  Ripley,  21  Tex,  434;  Tohler 
V.  Folsom,  1  Col.,  207;  School  District  v.  McLoon,  4  Wis.,  79;  Massey  v. 
McIUwane,  2  Hill's  (S.  C.)  Ch.,  421:  Johnson  v.  McGrader,  15  Mo.,  365:  Finn- 
cane  v.  Kearney,  Freem.'s  (Miss.)  Ch.,  65;  Oulenhouse  v.  Burleston,  11  Tex., 
87-  Blunt  v.  Tomlin,  27  111.,  93;  Bonner  v.  Cauldwell,  Harrinir.'s  (Mich  )  Ch., 
67';  Mason  v.  Blair,  33  111.,  194;  Brock  v.  Cook.  3  Port.,  464;  Morelaud  v. 
Lemasters,  4  Blackf.,  383;  Edwards  v.  Fry,  9  Kan.,  417;  Greg  v.  Hamilton,  12 
id..  333;  Johnson  v.  Bowden,  37  Tex.,  621;  Clatou  v.  Frazier,  33  id.,  91 ;  Home 
V.  Rogers.  32  id.,  218;  Freeman  v.  Freeman,  43  N.  Y.,  34;  Ingels  v.  Patterson, 
30  Wis.,  373;  Patterson  v.  Copeland,  52  How.  Pr.,  460;  Perkins  v.  Hadsell,  50 
111.,  216;  Shirley  v.  Spencer,  4  Glm.,  583;  Thornton  v.  Henry,  2  Scam.,  218; 
Kellv  V.  Staiusbury,  13  Ohio,  408;  Haines  v.  Haines,  0  Md.,  435;  Tracey  v. 
Tracey  14  W.  Va.,  243;  Vickers  v.  Sisson.  lO  id.,  12:  Pfiffm  r  v.  Stillwater 
and  St.  Paul  R  R.  Co.,  23  Minn.,  343.  In  De  Wolf  v.  Pratt,  42  111 ,  198,  wiU 
be  found  the  followiua;:  ''A  verbal  contract  for  the  sale  of  land  will  be  enforced, 
where  it  is  shown  to  have  been  fairly  made,  on  a  valuable  coDs:deration,  a  con- 
siderable portion  of  the  purchase  money  paid,  no  unreasonable  delay  in  paying 
the  whole,  possession  taken,  improvements  made,  no  disposition  shown  by  the 
plaintiff  to  evade  the  contract,  and  no  evidence  of  hardship." 

19 


290        FllY  ox  SPECIFIC  PEIIFOIIMANCE  OF  CONTRACTS. 

orary  and  not  of  a  legal  character,  part  performance  gives 
the  court  no  jurisdiction. (/)  Thus,  in  the  case  of  Lord 
Walpole  V.  Lord  Orford,(/7)  where  two  testators  on  the 
same  daj^  and  in  the  presence  of  the  same  witnesses,  exe- 
cuted mutual  wills  ;  one  of  the  testators  having  died,  it 
was  argued  that  there  was  part  performance  under  circum- 
stances which  could  only  be  referred  to  a  contract  between 
the  testators  to  make  such  wills  ;  but  Lord  Kosslyn,  though 
inferring  an  agreement  of  some  sort,  held  it  to  have  been  a 
merely  honorable  engagement,  and  one  which  the  court 
therefore  could  not  carry  into  effect. 

§  572.  On  the  same  principle  there  can  be  no  part  per- 
formance of  an  incomplete  contract.  For  acts  to  amount 
to  part  performance,  the  contract  "must  be  obligatory,  and 
what  is  done  "must  be  done  under  the  terms  of  the  agree- 
ment and  by  force  of  the  agreement. "(//) 

§  573.  Where,  however,  the  owner  of  a  ship-building 
yard  proposed  to  construct  a  siding  from  it  to  a  railway 
station  close  at  hand,  and  obtained  from  the  railway  com- 
pany a  general  assent  to  his  proposal,  and  proceeded  to 
make  the  siding,  without  the  details  of  the  arrangement 
having  been  agreed  upon,  and  after  the  construction  of  the 
siding  was  allowed  to  use  it  on  terms  embodied  in  an  in- 
formal memorandum  ;  it  was  held  that  even  had  there  not 
been  any  actual  user,  the  court  would  probably  have  found 
means  to  enforce  the  completion  of  some  arrangement  by 
which  the  comx)any  would  have  been  compelled  to  allow 
the  siding  to  be  used  on  reasonable  terms,  and  that,  the 
memorandum  showing  what  were  reasonable  terms,  an  ar- 
rangement on  that  footing  would  be  enforced  (/) 

§  574.  It  is,  perhaps,  scarcely  needful  to  observe  that 
where  the  j)OSsession  taken  is  not  under  a  contract  but  ad- 
verse, the  circumstance  that  there  is  no  common-law  remedy 
does  not  suffice  to  give  the  court  jurisdiction.  (,/) 

§  575.  The  general  character  of  the  acts  which  are  requi- 
site to  constitute  part  performance  for  the  i3urpose  in  ques- 
tion having  been  stated,  it  is  proi:)osed  now  to  show  the 

(/)  Cf  supra,  §  3;)!.  (i)  Laird  v.  Birkenhead  R'y  Co.,  Johns., 

{q,  ?,  Ve3.,41i2  500. 

(h)  PcfLortiKrouKhaminLa'lvE.Thj'nne  ( y)  East  India  Co.  v.  Nuthutnbadoo  Veera- 

V.  Karl  of  Gleiigall,  '2  £1.  L.C  ,  158.  sawiui  Aloodelly,  7  Moo.  P.  C.  C,  482. 


STATUTE   UF    FKA UDS,   KTC.  1  91 

result  of  tliese  priiu-iijles  in  respect  of  som.-  lariinilar 
acts.(A-) 

§  576.  Possession  is  in  some  cases  equivocal  in  resi)ect 
of  the  title  to  which  it  is  to  be  referred  :(/)  in  other  cases  it 
is  not :  therefore,  the  possession  of  a  tenant,  after  tlie  ex\)l- 
ration  of  a  lease,  which  was  referable  only  to  a  contract  for 
a  renewal,  has  been  considered  pait  performance  of  such  a 
contract.! //d)' 

v^  .177.  Still  more  clearly  "  the  acknowledged  possession 
of  a  stranger  in  the  land  of  another  is  not  explicable  except 
on  the  supposition  of  an  agreement,  and  has,  therefore, 
constantly  been  received  as  evidence  on  an  antecedent  con- 
tract.'\y/)'    Thus,  to  refer  to  an  often  cited  case,  where  a 

(*)  Coini.lur,  In  iuMitioii  to  the  eases  rfi-  jr^ve,  S  l)e  (i   M   A  (J.,  :t'i7,  3iJ7     Diallnguish 

feriH'l  V>  ill  the  U\t   Ki-lly  v.  A  aUh,  1   L.  U  lira.ly'n  Ca^e,  15  \V    li  ,7.')J. 

Jr., 'iT.'),  where  Klviiijf  coiineiU  to  H  l«a.se  was  (;i)  I'er   I'luintr,   M.    It,    In    .Morphett    v, 

hclil  u>  he,  uiiilcr  the  circuiiistanced  of  tiie  .loii' 8,  1  sw  ,  'f"!.    S«-f,ar<-i>rilinf;lv,  Kiiictier 

ca-e,  ail  aet  "I' part  ptTlorinanc^;.  v    St^pelv,  1  Vern,  littJ;  I'j  k>- v.  W  llh.iino. -J 

(/)  See  l^aiuare   v.    Dt\«m,  L.    II    li  H.  L.,  M.,4.V>;  Karl  nl  Ayle»l'.>ril  u  Cat>e,  "i  Sir  ,  Tsi; 

414;  Milhiril  v.  Harvcv,  34  Beav.,  2S7.  Sfwnrt  v.  Deiiloii,  1  Koiilil    K<|  ,  le7;  .Snvage 

(III)  Dowell   V.    Dew,  1  V.  A  C.  (J.  C  ,.U'>;  v   Carroll,  1  U.ill  A  I!.,  Jim;  Kliie  v    llaife,    • 

li  L.J.  Ch  ,  IV;  <I.  Uuikinaster  v.  Harrop,  1<I.,:J4.!;  Dale  v.  llainilton.  5  H.i  ,  :Wi;  Pain 

1.;  Vp<.,  45(;,  474;  Mll'anl   v.    Harvev,  13  W  v.  (  ooiiihf,  3  Suj.  A  «JII  ,  44'.t;  S.  i' ,  1  Dc  G. 

11.,  ii:>:  lu  Jiir.  ,N.  ts  ),  llt;7;  l-owell'v.  l.ovo-  A  .1  .  :;4. 

'  Rule  irhfre  poiott'ssioii  has  heeii  enteird  upon.  ]  Tlic  doclriiR'  uf  jiart  perforin- 
ance  by  possessiou  of  tlic  veuclcc  i.s  now  well  cstiibli.sla'd,  bolli  iti  ihi.s  cDUutry 
and  iii"l-^ii,iz:liincl.  Mi'.  Justift;  Slory  suy.s:  "If  upon  ti  paiol  iiirreenR-nt  a  inuu 
is  adniittril  into  jxissession,  lu;  is  inadL'  a  trL's|)assi.'r,  and  is  iialilc  to  answer  as  a 
trespasser  if  tlure  be  no  agreement  valid  in  law  or  eipiity.  Now,  for  the  pur- 
po.se  of  defending  himself  against  a  charge  as  a  trespasser,  and  a  .Miit  to  aecouut 
for  the  profits  in  such  a  case,  the  evidence  of  a  parol  agreement  would  .seem  to 
l)e  admissible  for  his  protection,  and  if  admissible  for  such  a  purpose  there  .seems 
no  rea.son  wliv  it  shoidd  uot  be  admi.ssibie  throughout."  Story's  Ya\.  Jur.. 
§  761.  See.  also,  Pugh  v.  Good,  ;J  Watts  k,  Seig..  .")U;  Simmonds  v.  Hill.  4 
Har.  &  ]\Ichew  ,  2'")1 ;  .Jones  v.  Peterman.  :;  Serg  A:  Puiwle,  ."»4:J;  Hums  v.  Suth- 
trland,  7  Pa.  St.,  Hi:};  Davis  v.  Townsend,  Id  Barb.,  ;;aj;  Ha-^sler  v.  Niesly.  3 
Seiii.  k  Rawle,  3r)2;  Letcher  v.  Crosby,  2  A  Iv.  >[arsh  .  J  (Hi;  Wilber  v  Paine. 
1  Ohio  St.,  'Z■^\\  Abbott  v.  Draper,  4  ]")enio,  31;  Peifer  v.  I.andis.  1  Walts.  ;;Si2; 
McFarland  v.  Hall.  :J  id.,  ;^.7;  Miller  v.  Hower,  'i  Howie,  ri;};  Gill  v.  Newman, 
18  Minn.,  4(52;  Folmer  v.  Dale.  0  Pa.  St..  83;  Smith  v.  Underdunk,  1  Saudf. 
Ch.,  oT'J;  roidrii,  <  atlett  v.  Bacon,  88  Mass.,  20i».  The  rule  is  very  much 
strengthened  by  the  fact  that  the  iio.s.session  is  accompanied  or  pr<i-ed(»l  by  the 
payment  of  the  purchase  money,  or  some  i)art  of  it.  Pike  v  Morey,  82  Vi,.  87; 
Drury  v.  (\)nner,  (i  H.ir.  vt  .lohns  ,  2.'^S;  Stevens  v.  Wheeler.  2:)  111..  .iOii;  fnder- 
hill  V.Williams,  7  IJlackf..  125;  Tibi)s  v.  Barker,  1  Blackf.,  .*>S;  Byrd  v.  Ddem. 

0  Ala.,  7."").");  Sutton  v.  Sutlon.  18  Vt  .  7i;  Wimberly  v.  Bryan,  .V>  Ga..  ll»8; 
Fit/simmons  v.  .VUen,  81)  111.,  4U);  Billington  v  Welsh.  5  Binney.  12U;  Gilday 
V.  AVatson,  2  Serir.  ic  Kawle,  407;  Adams  v.  Fulham,  48  Vt  ,  ."iOi;  A.sU'r  v. 
Lamareiux,  4  Sandf.,  'rlA;  Kellnms  v.  HichanUon.  21  Ark.,  187.  "The 
ackuowledu-ed  i>os.se.ssion  of  a  stranger  of  the  land  of  another  is  not  aj)plical>lo, 
except  on  the  supposition  of  an  agieeinent.  and  has,  therefore,  ('onslantly  iHt-n 
received  as  evidence  of  an  antecedent  contract."  Sir  T.  Plumer.  J.,  in  Mor- 
phett v.  .Tones,  1  Swanst.,  ISl;  Butcher  v.  Sheply.  1  Vern..  80;];  Pyke  v.  Wii- 
liams,  2  id.,  45">. 

•-'  But  in  these  cases  actu.il  delivery  of  posst'ssion,  or  jiwnt  \o  taking  posses- 
sion  must  be  shown.     AVroni^ful  possession  is  not  sufHcienl      .lervis  v.  Smilli, 

1  Hoff.  Ch.    470-  Lord  v.  L  luierdunk,  1  Sandf.  Ch.,  40;  sec  Wagt>ner  v.  Speck, 


292        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

parol  contract  for  a  lease  was  made,  and  the  terms  of  it  were- 
au'reed  on  between  tlie  proposed  lessor  and  lessee,  and  by 
tile  direction  of  the  lessor  the  lessee  instructed  a  solicitor, 
who  acted  for  both  parties,  to  reduce  the  terms  to  writing  ; 
and  the  solicitor  took  a  note  of  the  terms  thus  stated  to  him, 
and  from  it  prepared  a  draft  contract  embodying  these  and 
other  terms,  which  he  submitted  to  the  lessor,  who  after- 
wards, without  objecting  to  it,  let  the  lessee  into  possession, 
and  directed  the  solicitor  to  prepare  a  lease  in  pursuance  of 
the  draft  contract ;  and  a  draft  lease  was  accordingly  pre- 
pared, to  which  the  lessor  objected,  and  gave  the  tenant 
notice  to  quit :— the  court  held  that  there  was  part  perform- 
ance of  the  contract,  and  enforced  the  same  accordingly.  (o> 

§  578.  Even  where  the  possession  has  been  taken  with- 
out consent,  yet  if  the  owner  afterwards  allow  the  stranger 
to  remain  in  possession,  this  will,  it  seems,  operate  as  an 
act  of  part  performance.  (^) 

§  579.  Possession  is,  it  must  be  observed,  part  perform- 
ance both  by  and  against  the  stranger  and  the  owner  :{q} 
the  owner  has  allowed  the  stranger  to  do  an  act  on  the  faith 

(o)  Pain  V  Toombs,  1  De  G.  &  J  ,  34     See,  I-or<1  Kinesdown  In  Ramsden  v.  Dyson,  L.  R_ 

too,  Miilerv.  Finlay.SL  T.  (N.S.),  .MO.  1  U.  L  ,  170.           ,^     ,  „     .,          ,^., 

(v)  Gregory  V.  Mi^bell.  18  Ves.,  328;  Pain  (q)  Wilson   v    West  Hartlepool  Railway 

V.  Coombs.  1  De  G.  &  J.,  34  46.    See,  too,  per  Co  ,  3  De  G.  J.  &  S.,  476,  48.5. 


3  Ham.,  294;  Weed  v.  Terry,  Walk.  C\\.,  noi.  It  was  held,  in  Smith,  v. 
TJnderduuk,  1  Saudf.  Ch.,  fiTO,  that  where,  upon  a  parol  contract  for  the  sale 
of  two  parcels  of  land,  at  a  gross  price,  the  vendor  at  the  time  of  completion, 
conveyed  one  parcel  onlv,  and  agieed  to  convey  the  other  presently,  and  the 
purchaser  paid  the  whole  price  and  entered  into  possession  of  both  parcels,  on 
recei\nna:  the  deed  for  the  one,  the  contract  was  nijt  merged  iu  the  deed,  and 
that  theVii'chaser's  assent  to  tiie  delay,  ;;nd  the  vendor's  agreement  to  give  a 
deed  for  the  second  parcel,  did  nul  constitute  a  new  agreement,  or  substitute 
for  tlie  first;  but  that  the  conveyance  by  one  parcel  was  a  part  performance  of 
the  original  contract  In  Pugh  v.  Goods,  :3  Watts  &  Serg.,  50,  it  was  said  that 
the  delivery  of  the  possession  of  the  whole  of  the  land  sold,  is  sufficient,  aQd 
entitles  the  parties  to  a  .specific  performance.  But  in  Allen's  Estate.  1  Wiilt.s  & 
vSerg.,  38:^,  it  is  decided  that  the  delivery  of  possession  of  a  part  of  the  land,  to 
a  vendee  by  parol,  is  not  alone  sufficient  to  take  the  case  out  of  the  Statute  of 
Frauds.  In  Ellis  v.  Ellis,  1  Dev.  Ch.,  3-11.  a  purchaser  of  land  was  put  in  pos- 
session, and  paid  the  purchase  money,  under  a  parol  contract.  Held,  that  the 
contract  was  not  thereby  taken  out  "of  the  statute.  In  Hatcher  v.  Hatcher,  1 
]McMullan's  Ch.,  811,  it  is  decided  that  remaining  in  possession  by  the  pur- 
chaser, if  he  was  in  possession  at  the  time  of  his  purchase,  does  not  constitute 
such  a  part  performance  as  will  take  the  case  out  of  the  statute.  See  Brock  v. 
Cook,  3  Porter,  464;  Johnson  v.  Glancy,  4  Blackf.,  04.  But  if  the  vendee  takes 
and  continues  possession  of  the  premises,  under  the  contract,  and  especially  if 
he  makes  valuable  improvements  on  them,  this  will  be  sufficient  to  satisfy  the 
statute.  Johnston  v.  Glancv,  4  I51a(;kf.,  91 :  Tibbs  V.  Barker,  1  id.,  58;  More- 
land  V.  Lemaster,  4  id.,  Syg;  Thornton  v.  Henry,  2  Scam.,  218;  see  Keats  v.. 
Eector,  1  Pike,  391. 


STATUTE   or    rUAUDS,  KTC  293 

•of  tlie  contract,  viz.,  enter  on  tlie  land:  tlie  stranirer  lias 
allowed  the  owner  to  do  an  act  on  the  faith  of  the  contract, 
viz.,  withdraw  from  tlie  land.  Tliey  are,  therefore,  both 
bound. 

§  580.  Possession  is,  as  already  i)oint<^d  out,  part  per- 
formance as  well  against  a  comi)any  as  against  a  natural 
person,  (r) 

^  olSl.  It  is  not  only  in  contiacts  for  a  sale  or  a  lease  that 
possession  is  part  performance.  It  may  let  in  parol  evidence 
of  any  contract  explaining  the  possession.  Thus,  where  A. 
was  in  possession  of  his  own  land  subject  to  a  mortgage, 
and  he,  as  he  alleged,  contracted  with  B.  that  B.  should 
purchase  the  land  from  the  mortgage^  and  hold  it  for  the 
benelit  of  A.,  subject  to  certain  terms  for  the  repayment  of 
the  purchase  money,  and  B.  afterwards  set  up  the  purchase 
as  being  an  absolute  one  for  his  own  benelit,  the  continued 
possession  of  A.  as  owner  of  the  land  was  held  to  be  part 
performance  of  the  contract  alleged  by  him.(.sr)  In  another 
case  A.,  by  parol,  agreed  to  allow  B.  the  occupation  of  a 
leasehold  house  for  life,  on  payment  merely  of  ground  rent, 
rates  and  taxes.  E.  was  i)ut  into  jiossession,  and  that  pos- 
session was  held  to  preclude  any  objection  on  the  ground 
of  the  statnte.(0 

s^  382.  Many  c:ises  have  also  risen  in  respect  of  marriage 
contracts,  where  the  part  performance  has  excluded  the 
•operation  of  the  statute.  Thus,  in  a  c:ise,  where  there  was  a 
parol  pnmiise  before  marriage  to  give  certain  pi-operty  to  the 
married  pair  by  the  father  of  the  intended  wife  ;  the  marriage 
took  place,  and  was  followed  by  the  delivery  up  of  posses- 
sion to  the  son-in-law,  ex})eiiditure  of  money  by  him,  and 
the  absence  of  all  disturbance  on  the  part  of  the  father-in- 
law  ;  these  acts  were  held  to  be  in  i)art  performance  of  the 
•alleged  ante-nuptial  conti'act.(//)  And  so  wheiv  a  father 
verbally  promised,  in  consideration  of  his  daugliter's  mar- 
riages to  give  hor  a  liouse  as  a  wedding  pr.-seiit.  and  inim*^- 
diately  after  the  marriage  put  the  daughter  an<l  her  hu>band 
into  possession,  and  continued  himself  to  pay  what  became 
due  to  a  building  society  in  respect  of  an  existing  mortgage 

()■)  S   C.  f«)  Purcome  v   rinnlior.  3  De  O.  M.  &  G., 

(•;)  liiico'ii  V.  Wrizht,  2S  L. -F.  Ch.,  7ii5;  S.  .'>7l     ^ee,  also,  Floya  v.  Itucklaml,  1  hcrra., 

•C..  7  \V  ,  ]2t,3.iO;  4  |)e  (i   &  J  ,  Mi  -JGS. 
{t)   Coles  V.  PilkirigKMl,  1..  U.  Ill  Ef|  ,  17t. 


291        FKY  OX  SPECIFIC  PEKFOKMANCE  OF  CONTRACTS. 

on  the  liouse,  it  was  lield  by  the  court  of  appeal  (affirming 
the  decision  of  Malins  (V.  C),  that  the  possession  took  the 
case  out  of  the  statute,  and  that  the  bahmce  due  to  the 
building  society  on  the  father's  death  was  payable  out  of 
liis  estate. (?') 

i$  i58Jl.  The  same  principle  applies  in  cases  of  family  ar- 
rangements involving  the  giving  up,  partition,  or  exchange 
of  land  ;  so  that  though  such  arrangements  may  be  by  parol, 
yet,  if  they  be  followed  by  uninterrupted  exclusive  enjoy- 
ment of  the  several  lands  in  pursuance  of  the  arrangment,. 
the  court  will  specifically  enforce  them.(?^) 

§  584.  In  considering  this  effect  of  possession  where  the 
acquiescence  has  been  of  very  long  duration,  the  court  will 
regard  the  lapse  of  time  as  a  circumstance  against  allowing 
the  statute  to  be  set  up.(ir)' 

§  585.  The  laying  out  of  money,  provided  it  be  sucli  as. 
would  only  be  likely  to  take  place  in  pursuance  of  such  a 
contract  as  that  alleged;  and  it  be  with  the  privity  of  the 
other  party,  is  an  act  of  part  performance.  (2/)  Therefore, 
where  a  proposed  lessee  entered  and  built,  the  acts  were 
held  to  be  such  :{z)  and,  again,  the  alteration  of  a  garden 
fence  and  the  plantation  of  a  meadow  with  the  privity  of 
the  other  party,  and  2)artly  at  his  expense,  by  a  tenant  in 
possession,  were  held  acts  of  part  performance,  evidencing 
a  contract  to  demise  the  meadow  for  a  term. (a)'    So  the  ex- 

(V)  Unglcj'  V.  Ungk-y,  i  Ch.  I)  ,  73;  5  id.,  (x)  Blackford  v.  Rockjiatrick,  G  BcaT.,  232; 

8^7  of.  crook  T  «  orporaliou  of  Sealorii,  L.  It.  18' 

(w)  Stooklcy  V    RtockUy,  1  V.  &   P..,  23;  Kq  ,678;  6  Ch..  5.il. 

Neale  V   Ni.iic,  1  Kf  .  C72;  W  illiamt,  v.  Wil-  (v)  NMils  v.  Slradlinp,  3 ''■es  ,  378 

liiim'<,2  Ur  &  mil, 378;  iiflirmcl  I-.  i:.2<,h  ,  (s;  Savage  v    Fobter.  ft  Vlii    AIt,  5:24,  pi. 

2W4  (see  (ppcciallv  pages  3U4,  3  5;;  Cood  v.  43;  lieddiu  v.  Jarmvii,  16  L.  T.,449. 

Cood,  33  Beav.,314.  (")  buUiirlai.d  v.  liiUg-,  1  Ha.,  26.    See^ 

1  Thus,  where  a  vendee  having  paid  iKirt  of  the  purehase  money  of  land 
under  a  parol  agreement,  had,  together  with  hi.s  heirs,  been  in  possession  for 
several  years,  this  was  thought  sutticient  to  take  the  case  out  of  the  Statute  of 
Frauds,  and  to  entitle  theheirs  to  a  sijecitie  performance  of  the  agreement. 
Cox  V.  Cox,  Peck,  413;  see  Brock  v.  Cook,  o  I  ort.,  404. 

^  See  Bomicr  v  Caldwell,  Ilarring  's  Ch.,  <  7:  Johnston  v.  Glancy,  4  Black., 
94;  Tibbs  v  Barker,  1  id.,  .'iS;  JMoreland  v.  Lemasters  4  id.,  iuSi;  Thornton  v 
Henry,  2  Scam.,  218.  But  where  a  father  promised  his  son  that  if  he  would, 
remain  with  and  carry  on  his  farm,  he  would  leave  him  the  farm  at  his  death, 
the  son  having  already  continued  with  him  two  years  after  he  came  of  age,  it 
was  held  tlial  the  continuance  of  the  son  to  cultivate  and  manage  the  farm, 
and  his  makiiig  extensive  improvements  thereon  at  his  own  expense,  it  not 
appearing  that  he  agreed  to  do  so  l)y  the  contract  alleged  to  have  been  made 
with  his  "father,  were  not  con.sidered  a  part  performance  of  the  contract,  such 
as  would  take  the  case  out  of  the  statute.  Carlysle  v,  Fleu.ing,  Ilarring. 's 
Ch.  421. 


rtatutj:  of  frauds,  etc.  295 

penditure  of  money,  in  alterations  and  rei^airs  of  the  prop- 
erty, by  a  sub-lessee  with  the  knowledge  of  the  owner  has 
been  held  to  be  part  performance  of  the  contract  by  the 
owner  to  let  to  the  sub-lessor.  (//) 

§  580.  The  expenditure  of  mone}^  differs,  it  will  be  ob- 
served, from  possession,  in  two  respects  ;  the  one,  that 
wliilst  mere  possession  is  referable  to  a  tenancy  at  will,  as 
well  as  to  a  larger  estate,  the  laying  out  of  any  considera- 
ble sums  of  money  is  rationally  to  be  referred  only  to  some 
contract  to  confer  a  substantial  interest  in  the  property  ; 
the  other,  that  whilst  possession  cannot  be  supposed  to  be 
continued  by  a  stranger  without  the  knowledge  of  the 
owner,  a  person  in  possession  may  well  lay  out  money 
without  the  owner  s  cognizance ;  and  what  is,  therefore, 
necessarily  inferred  in  the  one  case  must  be  proved  in  the 
other. 

§  587.  There  are  cases  where  it  has  been  held  that,  as 
money  spent  in  rej^airs  easily  admits  of  compensation,  such 
expenditure  is  no  part  performance,  and  consequently  does 
not  avail  to  take  a  case  out  of  the  statute  ;(<?)  and  where 
the  acts  relied  on  are  prox)er  to  be  brought  before  a  jury, 
and  can  be  answered  in  damages,  or  are  in  the  nature  of  a('ts 
of  preparation,  (r?)  they  will  not  be  considered  as  part  per- 
formance. But  nothing  can  be  clearer  than  that  there  are 
many  acts,  easily  enough  admitting  of  compensation,  which 
yet  amount  to  such  i)art  performance  as  will  enable  the 
court  to  enforce  a  parol  contract. 

§  588  If  the  laying  out  of  money  in  alterations  in  pur- 
suance of  a  contract  is  a  part  performance  of  it,  it  might  be 
supposed  that  making  a  payment  of  the  jnu'chase  money 
payable  under  the  contract  was  yet  more  clearly  a  part  per- 
formance. But  this  cannot  be  said  to  be  the  case ;  for  it 
seems  now  to  be  decided  that  the  payment  by  the  purchaser 
to  the  vendor  of  the  whole(6^)  or  a  part,  whether  substantial 
or  unsubstantial,  of  the  purchase  money,  is  not  an  act  of 

also,   Stocklev  v    Stocklej',  1  V.   &   P...  23;  See,  too.  Shlllibeer  v.  .Tarvis,  S  l>c  (i    M    .t 

Toole  V.  iMfiTlicott.  1  Uall  &  l{..  393;  Rluinly  <i.,  70,  .h7.     Di-<tiiiKiilf Ii  How.- v    IIhH,  I    i:  4 

V.  Jolliffe,  5  My.  &  Cr.,  167;  Snrcome  v.  Pin-  Eq  ,  HI;  G..r.l'.ir  v.  Fook-.  U)  w     it.  38rt 

iiiger,  3  De  1^.  M.  &  G  ,  571 ;  Fan-Hll  v.  D\v-  (c)  Frame  v.  Drtwson,  U  Vv».,;lti«,  ci.  Forr- 

enport,  3  Giff.,  363;  Norris  v.  .Jackson,  Id.,  tir  v.  IIhIc,  3  id.,  7.3 

3il6.   Distinguish  Millard  v.Uarvey,  34  Beav.,  (rii  O  R.-iny  v  •lh..m|>s<.n.  2  Cox,  27 

037  (f)  Soe  (lei-  Ivilglit  Mriicc,  I-   •).,  lu  lliighfft 

'  (i))  Williams  v.  E\ans,  L.  R.  19  Eq  ,  517.  v.  Morris,  2  De  G.  M.  &  G.,  3M. 


296      fi:y  ox  si»]:ciric  pekfokmaxce  of  contracts. 

part  ptTfonnance  wliich  will  take  the  parol  contract  out  of 
the  statute. 

§  5^11.  Tlic  oi-oinuls  ol'  this  decision  seem  to  be,  first, 
that  the  nieiitiou  ol'  part  payment  in  the  ITtli  section  of  the 
Statute  ol"  Frauds,  :iud  the  silence  in  that  respect  of  the 
4th  section,  must  be  taken  to  show  that  the  legislature 
did  not  int<-nd  that  part  payment  should  be  binding  in 
cases  ol"  the  sale  of  lands ;(/)  and,  secondly,  that  the 
money  may  be  repaid,  and  that  both  parties  will  then  be 
in  the  stuation  in  which  they  w^ere  belore  the  contract, 
without  either  party  having  gained  any  inequitable  advan- 
tage over  the  other.if/)  Tiiis  is  a  case  where,  for  the  act 
done,  there  are  alternative  remedies,  one  by  the  execution 
of  the  contract,  and  the  other  by  repayment,— and  the  elec- 
tion to  put  the  other  party  to  the  latter  remedy  is  no  fraud. 
It  has  been  truly  snid  that  this  reasoning  overlooks  the  pos- 
sibility of  an  insolvency  intervening  and  preventing  the 
repayment  of  the  purchase  money, (//)  and  it  is  difiicult  to 
say  that  the  leasoning  is  satisfactory,  l)ut  the  courts  have 
acted  upon  it. 

The  law^  upon  this  subject  has  been  somewhat  vacillating. 
In  a  case  before  Lord  Hardwicke,  he  held  part  payment  to 
be  part  performance;!'//)  but  tliis  as  a  general  proposition 
was  early  overruled.  The  qut-stion  ihen  arose  whether, 
although  payment  ol"  a  small  installment  was  inoperative, 
payment  of  the  whole  or  of  a  substantinl  part  of  the  price 
would  not  be  an  act  of  part  performance.  Lord  Rosslyn 
maintained  the  affirmative  of  this  question  ;( /)  but  Lord 
Redesdale  denied  any  such  distinction  ;(./)  and  Lord  Ross- 
lyn's  decision  seems  now  to  be  overruled,  upon  the  ground 
that  it  is  impossible  satisfactorily  to  discriminate  between 
substantial  and  unsubstantial  part  payments. (7i)' 

(/)  Clinan  V.  cooko,  1  Srli.  &  Lef,  22;  Watt  ar^utneiita  In  UMlls  v  Str.iil  ing,  3  Ves.,  378, 

V   Evans,  4  V.  &  C.  Ex  ,  579.  :i!iil  Sinimous  v.  Coriu'liiia,  1  Kt-p.  In  (Jh.,  138 

(a)  CMnaii  V.  (  ooke,  1  Sch.  &  Ia'I'.,  -22.  (a  f.asi;  bcl'oit-  tht;  8  atuie). 

{■(/)  13  Ves  ,  401,  iiott!  bv  t»ie  reporter  (,/')  In  c:iinan  v  C'>oke,  1  Sch.  &  I.ef.,  23. 

(ft!  l>ac.oii  V.  iMeriiii?,  3  Atk.,  4.    tsee,  also,  './.■)  Watt  v.  Evan«.  4  Y.  &  C.  Ex.,  579.    See 

Chii(i  V.  ConilxT,  3  Sw  .  423  n.  E\  parte  Hooijor,  19  Vt-a  ,  479. 

(i)  Main  v.  Mclbuurn,  4  Ves.,  730.    See  the 


'  See  Story's  Eq.  Jur.,  §  7(50.  In  this  country  the  decisions  upon  this  point 
are,  by  no  UK-aus.  hitrnioniou.s.  In  Virginia  and  Mi.'^si.ssippi,  it  lias  been  held 
that  part  payment  of  tlie  purcliase  money  is  not  such  a  part  performance  of  a 
parol  contract  for  the  sale  of  lands,  as  totake  an  agreement  out  of  the  Statute 
of  Frauds.  .lackson  v.  Cutri-jht,  ■')  Munf.,  80^:  Hood  v.  Bowman,  1  Fieem.'s 
Ch.,  -290;  and  see  Hatcher  v.  Ilatcher,  1  McMullan's  Ch.,  ;}11.     In  Michigan  it 


STATUTE   OF   FllAUDS,  ETC.  297 

§  i»0©.  Payment  of  the  auction  duty  has  been  lield  not 
to  be  part  performance,  it  being  by  the  revenue  laws  essen- 
tial to  the  contract,  and  "that  without  which  there  would 
have  been  no  contract  cannot  be  said  to  be  in  part  perform- 
ance of  the  contract."  (^) 

§  501.  The  same  vacillation  which  characterized  the 
€Ourse  of  the  authorities  on  payment  of  the  purcliase  money 
as  part  performance,  has  attended  the  cases  dealing  with 
the  question  whether  payment  of  an  additional  rent  is  to  be 
treated  as  part  jjerformance.  In  the  earliest  case  on  the 
subject,  it  was  laid  down  that  such  a  payment,  if  shown  or 
admitted  to  be  on  the  foot  of  the  contract,  is  a  circumstance 
•of  part  performance,  (w)  It  was  subsequently  determined 
not  to  be, (?i)  but  this  decision  appears  to  be  ovei ruled  by 
the  case  of  Nunn  v.  Fabian, (o)  where  a  landlord,  having 
verbally  agreed  with  his  tenant  to  grant  him  a  lease  for 
twenty-one  years  at  an  increased  rent,  died  before  the 
execution  of  the  lease,  but  after  having  received  from  the 
tenant  one  quarter" s  rent  at  the  increased  rate:  and  it  was 
held  that  this  payment  constituted  a  sufficient  act  of  part 
performance  to  take  the  case  out  of  the  statute. 

§  592.  It  is  not  easy  to  think  that  the  whole  group  of 
cases  dealing  with  the  payment  or  expenditure  of  money 
on  the  footing  of  a  contract  is  satisfactory.  It  would  seem 
reasonable  to  hold  one  or  other  of  two  things  :  that  all  pay- 

(D  Per  Grant,  M  R  ,  in  BiickmasttT  v.  liar-  (")  L.  R  1  Ch.,35.  Consiiier  Tlowe  v.  nail, 

rop  7  Ves  ,  34G.  I-  H  4  Kq  .  "^^2;  Archbold  v.  Howth,  1.  R.  1 

(m)  Wills  V.  Strarlll  cr,  3  Ves..  378.  O.  L,  ,6.8. 
(n)  O'Herllhy  v.  Heflgeti,  1  sell.  &  Lcf.,  123. 


was  held,  in  McMurtrie  v.  Bennett,  Harring.'.s  Ch.,  1-24,  that  the  payment  of 
the  whole  of  the  purchase  money,  clearly  in  pursuance  of  a  definite  and  mutual 
parol  agreement,  is  suthcient  to  take  the  ca.se  out  of  the  statute;  l>ut  the  pay- 
ment of  a  tritling  amount  of  the  consideration  is,  in  no  case,  of  il.>*elf.  suthcient. 
But  in  another  case,  Towusend  v.  Houston,  llarring.'s  Ch.,  n^-J,  it  was  decided 
that  payment  of  part  of  the  pun-liase  money  is  such  a  p^rt  i)erlV)rniance  of  a 
parol  agreement  for  the  sale  of  land,  as  to  take  a  contract  out  of  tlu-  statute 
and  authorize  a  decree  for  a  specific  performance.  In  Connecticut,  it  is  said 
in  Downey  v.  Hotchkiss,  2  Dav,  il'),  that  the  legislature  adopteil  not  only  tlic 
Engli.sh  Statute  of  Frauds,  but  also  the  construction  given  to  it  l.v  tlie  courts 
in  England.  The  same  remark  is  made  in  reference  to  IVniisylvania,  in  Tugh 
V.  Good,  :5  Watts  &  Serii.,  ")(>.  And  in  Parker  v.  Wells,  r,  Wliart.,  l."):!.  pay- 
ment of  the  purchase  moncv  by  the  vendee  of  land,  und.T  ti  iiarol  contract  of 
:sale,  does  not  alone  take  the  coiitract  out  of  the  statute.  North  Carolina,  South 
Carolina,  Missouri,  Indiana  and  Ohio,  have  followed  the  same  rule,  ami  hold 
the  payment  of  all  the  purchase  money  as  insullicient  to  satisfy  the  .statute. 
Ellis  V  Ellis,  1  Dev.'s  Ch.,  341 ;  Smith  v.  Smith.  I  Rich.'s  Ch  ,  l;<0;  Anderson 
V  (  hick,  1  Bailey's  Ch.,  118:  Bean  v.  Valle.  2  Mis.,  12G;  Johnston  v.  Glancy, 
4  Blackf.,  94;  Site  v.  Keller,  0  Ham.,  483;  Pollard  v.  Kinner,  id..  .j-JS. 


298         FRY  ox  SPECIFIC  PEKKOKMAXCE  OF  CONTRACTS. 

TTierUs  of  money  made  bj^  one  contracting  party  with  the 
knowledge  of  the  other,  and  on  the  faith  of  the  contract, 
shoukl  be  deemed  acts  of  part  performance  for  the  purpose 
in  question  ;  or  that  none  of  such  acts  shouhl  be  deemed  to 
be  part  performance,  and  that  the  court  should  in  all  these 
cases  think  that  the  possibility  of  repayment  deprived  them 
of  any  effect  on  the  Statute  of  Frauds.  It  does  not  seem 
reasonable  to  halt  between  the  two  opinions. 

§  50:1.  Marriage  alone  is  not  a  part  performance  of  a  con- 
tract in  relation  to  it :  for  to  hold  this  would  be  to  overrule 
the  Statute  of  Frauds,  which  enacts  that  every  agreement 
in  consideration  of  marriage  to  be  bindino:  must  be  in  writ- 
ing. (7>>)'  Accordingh\  where  there  was.  before  marriage,  a 
contract  by  parol  for  tiie  settlement  of  part  of  the  wife's 
IDi'operty,  and  that  the  husband  should  lake  the  rest,  which 
he  did,  but  there  was  no  settlement  made  ;  and  the  wife 
subsequently  hied  her  bill,  stating  these  facts,  for  the  pur- 
pose of  obtaining  a  declaration  of  her  rights  in  certain 
I)roperty  coming  to  her,  and  the  husband,  by  his  answer, 
admitted  the  statements  in  the  bill,  and  a  deed  was  then 
prepared  purporting  to  be  a  settlement  on  the  wife  in  pur- 
suance of  the  contract,  and  was  signed  but  not  acknowl- 
edged by  the  wife  ;  in  a  suit  by  a  plaintiff  claiming  under 
the  settlement  against  the  heir,  it  w;is  held  that  there  was 

(r')PerI,oril  Hanhvickclii  Taylorv  IJeecli,    M.  U.,  In  Wanlen  v.  Jones,  23  P.eav  ,  i"-'  (S. 

1  Ves  Sen,  297;  I'cr  L'M-d  Thmluw  in  Dun-  C  on  appehl,  2  De  G.  &  J.,  7fi).  U.n^ider 
rtas  V.  l>ul*:iis   1  Vt-s.  Jun  ,  lli!».     As  to  this    Gilchrist  v    Herbert,  20  W.  B.,  318. 

case,  bCc  the  observations  of  Lord  Ramilly, 

'  This  chuisc  has  not  been  enacted  in  all  of  the  States;  but,  wherever  it  lias 
been,  the  requirements  of  the  English  statute  must  be  eomplied  -with,  and  its 
entire  interpretation  received.  Pars,  on  Contr.,  vol.  1,  pp.  5-17,  oib,  and  pp. 
553,  5")4,  vol.  2,  p.  310  (note  z). 

Marriage  contract ;  excei)tpm.'\  "There  is  a  dilTerence  between  agreements 
on  marriage  being  carried  into  execution  and  other  agreements;  for  all  agree- 
ments besides  are  considered  as  entire,  and.  if  either  of  the  i)arties  fail  in  per- 
formance of  the  agreement  in  part,  it  caiuiot  be  decreed  in  specie,  but  must  be 
left  to  an  action  at  hnv.  In  marriage  agreements  it  is  otherwise;  for,  though 
the  relations  of  the  husband  or  wife  shoidd  fail  in  the  performance  of  their 
part,  yet  the  children  may  compel  a  performance.  If  the  mother's  father,  for 
instance,  htth  agreed  to  give  a  portion,  and  the  husband's  father  hath  agreed 
to  make  a  settlement,  though  the  mother's  father  do  not  give  the  portion,  yet 
the  children  may  compel  a  settlement,  for  non-performance  on  one  part  shall 
be  no  impediment  to  the  children's  receiving  the  full  benefit  of  the  settlement. 
So,  if  there  be  a  failure  on  the  part  of  the  father's  relations  it  is  the  same." 
Lord  Hard  wick,  in  Harvey  v   Ashlev,  3  Atk.,  Gil;  see  also.  Llovd  v.  Lloyd, 

2  My.  ic  Cr.,  VOI;  Dennison  v.  Gothring,  7  Pa.  St.,  175;  King  v.  Whitely,  10 
Paige's  Ch.,  4G3;  Nenes  v.  Scott,  li  How.,  197;  2  Story's  Eii.  .Jur.,  ?=  '^^\j. 


STATriK    <iF    FllAI'DS,  ETC.  299 

no  part  ix^foinuince  by  ni-aninnv,  nor  any  other  part  per- 
formance of  tlie  parol  contract,  and  that  it  was  void  and 
all  the  subsequent  proceedings  ineffectual. (/y)' 

sj  ."iOl  In  a  case  already  referred  to,  the  intended  hus- 
band and  wife,  previously  to  marriage,  agreed  by  a  writing, 
which  was  held  to  be  unsigned,  that  the  husband  shonld 
have  the  wife's  pi'opertj^  for  her  life,  paying  her  a  certain 
sum  by  way  of  pin-money,  and  that  she  should  have  it  back 
again  after  his  death  ;  and  instructions  were  given  for  a 
marriage  settlement  to  have  that  effect ;  but  no  settlement 
was  ever  executed,  the  husband  promising,  as  the  wife 
alleged,  to  make  a  will  giving  her  all  his  i)r()perty — a  prom- 
ise which,  if  made,  he  did  not  keep.  After  the  husband's 
death  the  wife  sought  specific  performance  of  the  ante- 
nuptial airangment,  but  it  was  held  that  there  was  no  con- 
tract in  writing  within  the  statute,  and  that  the  marriage 
was  no  part  performance. (r)  This  decision  was  affirmed  by 
the  House  of  Lords, (*•)  but  the  question  of  part  perform- 
ance was  not  there  argued. 

(q\  LTSsence  v.  Ticrnev,  1  Mac.  &  G  .  'wl.       w  !<•  K.  2  H.  L.,127. 
((■)  (Jaton  V.  Catoii,  L.  l^.  1  Ch.,  137. 


'  M((rn<ige  <(>(  part  perfonnajicr.]  Agreeincnts,  iu  considonition  of  nmrriagc, 
iu  order  to  be  binding  under  the  Statute  of  Frauds,  must  be  iu  writing;  mar- 
riage alone,  therefoie,  will  not  constitute  such  an  act  of  part  performance,  as 
will  render  valid  a  parol  contract  made  in  relation  to  it.  "The  subsequent 
niairiage  is  not  deemed  a  part  performance  taking  the  case  out  of  the  statute, 
contrary  to  the  rule  which  prevails  in  other  cases  of  contract.  In  this  resi>ect 
it  is  alvvavs  treated  as  a  peculiar  case  standing  on  its  own  ground."  Story's 
Eq.  Jur.  '  In  some  of  the  States  mutual  promises  to  marry,  are  expressly  ex- 
cepted from  the  operation  of  the  statute.  The.se  are,  Alabama,  Rev.  Code  of 
18(57,  ^  1802;  California.  Code,  i;  1()24:  Kentuckv,  II.  S.,  ch.  *2'2.  §  I;  Mmne- 
sota.  Slal.  1873.  vol.  1,  p.  GU2.  ^  C,  subd.  li\  Nebraska,  Stat.  1873.  ch.  2.j,  Ji  U; 
New  York,  K.  S.  (0th  cd.),  vol.  3,  p.  343;  Wisconsin,  Slat.  1871,  ch.  107.  Ji  2. 

Time  irithia  which  the  conlmrt  in  to  be  performed]  Tiie  English  statute,  and 
the  statutes  of  several  of  the  Slates,  makes  it  essential  to  tlie  validity  of  any 
verbal  agreement,  and  to  the  maintenance  of  any  action  ujion  it:  that  it  is  to 
be  performed  within  the  .space  of  one  year  from  the  making  of  ihe  same.  In 
New  York,  and  in  some  of  the  oilier  States,  any  such  contracl,  wilii  the  excep- 
tion of  lea.ses  for  one  year  or  less,  are  void.  Peter  v.  Compl(Jii.  Skmner,  353; 
Gilbert  v.  Svkes,  l(i  East.  loO;  Wells  v.  llorlon.  4  T.ing.,  40;  King  v.  Hunua. 
J»  B  Mon  .  iiU!);  Peters  v.  luh  ib.  of  We.stborough,  19  Pick.,  itdo;  I/ard  v.  Mid- 
dlelou,  1  i)es,sau.'s  Ch.,  110;  Thompson  v.  Gordon,  3  Slrobii.,  I'JO;  Hhikc  v. 
Cole,  22  Pick..  i)7;  Clark  v.  Pendleton,  20  Conn..  4!)5:  Howard  v  Ikrgen.  4 
Dana.  137-  McLees  v.  Hak-.  ID  Wend  .  42G;  Ellicott  v.  Turii.r.  4  Md.,476; 
Archer  v.  Zeh,  5  Hill,  2U0:  Tollev  v.  Green,  2  Saudf.  Ch..  Itl :  Koberls  v.  Uock- 
hottom,  7  Mete  ,  AVr.  Lvon  v.  KiUiX,  H  id  .  411:  Doyle  v.  Dickson.  ItT  Ma.s.s.. 
209;  (iuackenbiisli  v.  Eble,  r,  Barb.,  4(;<.».  Wiiere  it  is  not  the  mlcntioii  and 
understanding  that  the  contract  shall  be  performed  wuhin  a  year,  U  wdl  not 
betaken  out\>f  Ihe  operation  of  the  statute  by  the  fact  that  it  is  possible  to 
perform  it  within  tliat  time.  P.oydell  v.  Drummond,  11  Ea.st,  142;  Ilerrin  v. 
Butters,  20  Me  ,  IIU:  contni,  Ellicott  v.  Turner,  4  Md.,  470. 


300         Fi:V  ox  S1>ECIFI("  rKKFOllMANCK  OF  CONTllACTS. 

vj  oIK*.  Tli<M-(»  may,  of  course,  often  be  acts  connected 
with  the  niarriai-e  wliicli,  as  independently  of  it,  they  would 
be  acts  of  part  performance,  are  not  tlie  less  so  from  being 
done  in  connection  with  it,  and  therefore  differ  from  cases 
Avhere  the  marriag-e  is  the  sole  act  relied  on.  Thus,  in  a 
case  wliich  was  ultimately  decided  by  tlie  House  of  Lords, 
it  was  held  that  the  execution  by  the  husband  of  a  settle- 
ment in  pursuance  of  a  parol  contract  entered  into  by  him 
with  the  lady's  father  previously  to  the  mairiage  being 
something  over  and  above  the  marriage,  was  an  act  of  part 
performance  of  the  parol  contract  entered  into  previously 
to  it.{t)  In  the  case  of  Warden  v.  Jones(?/)  it  was  held  by 
Lord  Romilly,  M.  R.,  that  the  execution  of  a  settlement  is 
no  act  of  part  performance  where  the  previous  parol  con- 
tract is  between  the  intended  husband  and  wife  only,  and 
not  between  tlie  husband  and  some  third  person,  and 
that  such  a  settlement  must  be  considered  a  voluntary 
deed ;  and  this  decision  was  affirmed  by  Lord  Cran- 
worth. 

§  596.  The  cases  in  which  the  court  relieves  on  the  ground 
of  marriage  in  fraud  of  a  parol  contract  entered  into  pre- 
viously, must,  of  course,  be  distinguished  from  cases  in 
which  the  marriage  itself  is  set  up  as  part  perfornumce  of 
tlie  contract.  ('«) 

§  597.  But  though  marriage  be  not,  cohabitation  maybe 
a  sufficient  act  of  part  performance.  In  a  separation  deed, 
the  husband  covenanted  with  a  trustee  for  the  payment  of 
an  annuity  to  his  wife  ;  shortly  before  the  death  of  the  hus- 
band, his  wife  returned  to  him  upon  the  faith  of  a  promise 
made  by  the  husband  to  the  wife  and  her  trustee,  that  if 
she  would  do  so  he  would  continue  to  pay  the  annuity  and 
would  charge  it  upon  his  real  estate.  He  died  without 
having  done  so,  and  it  was  held  that  the  contracc  could  be 
enforced  against  the  devisees  of  the  husband,  on  the  ground 
of  part  performance. (zo) 

^  598.  As  acts  done  jorior  to  a  contract  cannot  be  referred 

(t)  riammerslev  v.  Pt  r.iel,  12  r  1.  &  Fin.,  anirni»-<l  4  De  G.  M.  &  G.,  137      Of.  Alolerson 

45,  (^  n.;  Surcome  v.  i'lniilger,  3  Do  G.  .M.  &  v.  M:iililis.>ii.  5  Ex.  1)  ,  -.'i);},  whore  service  as 

(^.,571.  lion-fkeoiitT  jiihI  jflvini,' up  <ithtr  prdsiipcts 

(«)  23  near.,  4*^7:  r.n  apiical '2  De  G.  &  J.,  7C.  In  life  were  regimled  bv  Stephen,.!  ,  as  part 

(r)  See  supra,  §  553  pprt(  rnianci-;  hut  hi^  decision  v\;id  rtvcj-std 

(W)  Welisier  v    W  ebfter,  1  ^m.  &  G.,  489;  on  api  eal.  W.  N.,  1881,  p.  GS. 


STATUTE   OF   FRAUDS,  ETC.  liOl 

to  it  as  (lone  in  pursuance  of  it,  they  can  never  1)8  treated  as 
acts  of  part  performance,  (rr) 

§  599.  And  so,  also,  acts  subsequent  to  the  contract,  and 
even  in  pursuance  of  it,  if  not  strictly  in  performance  of  the 
contract  as  between  the  parties  to  it,  but  preparatory  to 
such  performance,  cannot  be  taken  as  yjart  performance. 
It  is  evident  that  acts  of  this  sort  maj^  be,  and  for  the  most 
part  are,  the  mere  acts  of  the  party  doing  them  :  the  other 
party  is  not  necessarily  cognizant  of  them,  and  consequently 
he  is  not  so  bound  by  them  as  to  render  it  fraudulent  in 
him  subsequently  to  refuse  to  carry  the  contract  into  elYect. 
Therefore,  giving  instructions  for  a  lease,  (2/)  putting  a  deed 
into  a  solicitor's  hands  to  prepare  a  conveyance, (z)  giving 
orders  for  a  conveyance  to  be  draAvn  and  going  several  times 
to  view  the  estate, («)  the  execution  and  registration  of  the 
deeds  by  the  vendor, (&)  and  the  admeasurement  of  the 
estate,  (c)  have  all  been  decided  not  to  be  acts  of  part  per- 
formance binding  on  the  other  party  to  the  conti-act.  So 
again,  where  it  was  a  condition  of  the  contract  that  the  plain- 
tiff should  obtain  a  release  of  a  right  from  a  third  party, 
which  the  plaintiff  did  obtain  by  payment  of  a  valuable  con- 
sideration ;  it  was  held  to  be  merely  a  preparatory  act  on 
the  part  of  the  plaintiff,  and  not  a  part  performance  of  the 
contract. (VZ)'     And  the  appropriation  of  money  by  a  party, 

(.r)  Parker  v  Smith,  1  CiH.,  6'  8,  623  (b)  Hawkins  v  Holmes.  1  P.  Wnis.,  770;  cf. 

(2/)  Cole  V.  White,  cited  1  Bro.  C.  C,  409.  Phillips  v.  Kilwarris,  aj  Beav.,  -144.  445. 

iz)  Heading  v.  Wilkes,  3  Bro.  O.  C,  400.  (ci  Peinliroke  v  Thorpe,  3  -Sw.,  437  n. 

(a)  Clerk  v.  Wriiiht,  1  Atk.,  12,  Cooke  v.  (rf)  O'lieilly  v.  Thoaipsou,  2  Cox, -271. 
Tombs,  2  Anstr  ,  420. 

'  Paymevt  of  monrt/ alo/ie*  is  not  -part  performance.']  The  rule  is  uow  well 
settled,  and  all  the  best  authorities  agree,  that  the  vendee  will  not  be  eutitled 
to  the  specific  performance  of  a  parol  contract  for  the  purchase  of  real  prop- 
erty or  an  interest  tliereiu,  merely  upon  the  payment  of  money,  where  notliing 
else  is  done.  Newland  on  Contracts,  ch.  10,  p.  187;  O'lIerHliy  v.  Iled.iri'S,  1 
Leh.  &  Lcf  ,  121);  Coles  v.  Trecothick,  9  Ves.,  'l-M:  \ho\^  v.  Patten.  1  Veru., 
472;  Lord  Pengall  v  Itoss,  2  Eq.  C;as.  Abr.,  415.  \^\  12;  Leake  v.  M..rris.  2  Ch. 
Cas.,  lo5;  .Jaclvson  v.  Cutright,  5  :Muuf.,  30o;  Garner  v.  Slubblefield.  .1  Te.\., 
552;  Mialhi  v.  Lassabee,  4  Ala.,  712;  Black  v.  Black,  15  Ga..  4-15;  Hart  v. 
McLellan,  41  Ala.,  251;  Sites  v.  Keller,  6  Ohio,  483;  Dugan  v.  Colville,  8  Te.x., 
12(5;  Wood  V.  Jones,  35  id.,  G4;  Netherlv  v.  Riplev.  21  id.,  434:  Parker  v. 
Wells,  6  Whart.,  153;  Hood  v.  Bowman,  Freeman's  (Miss.)  Ch.,  290;  Blauch- 
ard  V.  McDougall,  6  Wis.,  1()7:  Smith  v.  Finch.  8  itl.,  245;  Cogger  v.  Lansing, 
43  N.  Y.,  559;  Cole  v.  Potts.  10  X.  .J.  Eq.,  67;  Park  v.  Leawright,  20  .Mo..  sO 
Underbill  v.  Allen,  lSArk.,4G'J;  Workman  v.  Guthrie.  29  Pa.  St.,  445;  liladett 
V.  Hildreth,  103  JMass  ,  404;  Lang  v.  McLaughlin,  14  Minn.,  72;  Odell  v.  .Mon- 
tross,  68  N.  Y.,  499;  Gilbert  v.  Trustees,  etc,  12  X.  J.  Eq.,  180. 

Judge  Story's  rule  as  to  part  performance.']  "  Nothing  is  to  be  deemed  a  part 
performance  which  does  not  put  the  party  into  a  situation  Avhieh  is  a  fraud 
upon  him,  unless  the  agreement  is  fully  performed."  Story's  Eq.  Jur.,  g  701; 
see,  also,  Temple  v.  Johnson,  71  111.,  13. 


302        FRY  ox  SPECIFIC  PEra-OIlMANCE  OF  CONTRACTS. 

though  it  may  be  witli  a  view  to  an  intended  purchase,  is 
not  of  itself  any  part  performance  or  evidence  of  any  con- 
tract. (^') 

§  600.  To  tlie  same  principle  may  probably  be  referred 
the  case  of  Whaley  v.  Bagnel,(/)  in  the  House  of  Lords. 
A.  agreed  by  parol  with  B.  for  the  purchase  of  lands :  B. 
delivered  a  rent-roll  to  A.,  which  showed  by  its  heading 
that  a  contract  had  been  entered  into  betw^een  them  for  the 
sale  of  the  lands  comprised  in  it  at  twenty-one  years'  pur- 
chase, and  an  abstract  of  the  title  and  deeds  was  also 
delivered  to  A.  for  the  purpose  of  effecting  the  sale  ;  B. 
informed  his  creditors  by  letter  that  he  had  agreed  to  sell 
the  land  to  A.:  he  took  A.  over  the  estate,  introduced  him 
as  landlord  to  the  tenants,  and  refused  to  renew  leases  and 
do  other  acts  of  management  as  owuier,  in  these  cases  refer- 
ring the  tenants  to  A.  B.  also  set  up  the  contract  against 
an  elegit,  and  on  the  strength  of  it  obtained  a  verdict  finding 
him  not  to  be  seized  of  the  lands  in  question  :  but  notwith- 
standing all  these  circumstances,  a  plea  of.  the  Statute  of 
Frauds  was  allowed. 

§  601.  In  Phillips  v.  Edwards,  (<'/)  land  being  vested  in  a 
trustee  for  a  married  woman  with  power  to  lease  at  her  re- 
quest in  w^i'iting,  the  two  verbally  agreed  to  let  it,  and  exe- 
cuted a  lease  of  it ;  but  before  her  solicitor  had  parted  with 
the  deed,  and  before  the  i:>hiintifl:'s  (the  would-be  lessees) 
had  executed  the  counterpart,  the  married  woman  (who  had 
made  no  waitten  request  to  the  trustee)  signified  her  inten- 
tion to  retire  from  the  transaction.  Jt  was  held  by  Lord 
Romilly,  M.  R.,  that  her  execution  of  the  lease  was  no  part 
performance,  and  that  there  was  no  binding  contract. 

t;  60S.  But  where  the  contract  lietween  A.  and  B.  com- 
jirises  acts  between  A.  and  B.  and  also  between  B.  and  C, 
and  A.  may  be  supposed  to  have  an  interest  or  to  have  stipu- 
lated in  respect  of  the  acts  between  B.  and  C,  part  perform- 
ance with  knowledge  of  this  part  of  the  contract  renders  it 
binding  on  A.  This  seems  to  be  illustrated  by  the  case  of 
Parker  v.  Smith.  (^)  There  a  lessor  entered  into  a  parol 
contract  with  a  colliery  company,  holding  a  lease  from  him, 

(e)  East  Inilia  C".  v.  Xuthumba<loo  Veera-        (g)  33  Beav.,  440. 
sawmy  Mooilellv,  7  Moo.  I'.  C.  C  ,  ■:8-2,  497.  (/i)  Coll.,  0..8. 

(/)  1  liro.  P.C.,315. 


STATUTE   OF    FRAUDS,  ETC.  303 

and  consisting  of  four  partners,  of  wliom  two  were  his  sons, 
that  one  of  his  sons  and  one  of  the  other  partners  should 
retire  and  leave  the  benefit  of  the  business  to  the  remaining 
two,  and  that  thereupon  he  would  consider  the  subject  of 
rent,  which  it  was  found  was  i^ut  too  high  in  the  original 
lease,  and  refer  the  subject  to  a  competent  person,  and  on 
the  report  of  that  person  being  made,  would,  if  the  report 
should  seem  right,  adopt  it,  and  grant  a  new  lease.  The 
dissolution  of  partnership  so  agreed  on  took  place,  and  the 
two  continuing  partners  released  the  others:  these  acts, 
being  referable  only  to  the  contract,  were  held  to  take  the 
case  out  of  the  Statute  of  Frauds,  and  specific  performance 
of  the  contract  to  grant  the  lease  was  enforced  against  the 
lessor's  assignees  in  bankruptcy. 

§  603.  In  a  recent  Irish  case,  B.  being  tenant  to  A.  sur- 
rendered his  lease  on  the  faith  of  a  parol  contract  by  A.  to 
grant  a  new  lease  to  C:  the  surrender  was  held  an  act  of 
part  performance,  and  the  contract  was  enforced  against 
A. ' s  representatives. (/) 

§  604.  Fourthly,  the  effect  of  part  performance  being,  as 
we  have  seen,  to  show  that  there  is  a  contract,  and  to  let  in 
parol  evidence  of  the  terms  of  that  contract,  it  becomes 
necessary  to  inquire  on  what  evidence  or  admission  of  the 
contract  the  court  will  act. 

§  605.  The  cases  which  require  to  be  considered  may  be 
classified  as  follows : 

(1)  Where  the  defendant  admits  the  contract  as  alleged. 

(2)  AVhere  the  defendant  denies  the  contract  as  alleged, 
and  the  plaintiff  supports  his  case  by  one  witness  only. 

(3)  Where  the  defendant  denies  the  contract  as  alleged, 
and  the  evidence  proves  a  contract,  but  different  from  that 
alleged  by  the  plaintiff. 

(4)  Where  the  defendant  denies  the  contract  as  alleged, 
but  admits  another  contract. 

§  606.  (1)  An  admission  of  the  contract  in  the  pleadings, 
of  course,  precludes  the  necessity  of  further  proof  :  and  the 
fact  that  the  defense  claims  the  benefit  of  the  Statute  of 
Frauds  is  immaterial  in  case  of  part  peiformance,  for  that 
excludes  the  operation  of  the  statute,  (y) 

(i)  Re  Cooke's  Trustees'  Estate,  5  L.  R.  Ir.       (j)  Ccoth  v.  Jackson,  G  Ves.,  12. 


304         FHY  ox  SI'ECIFIC  PERFORMANCE  OF  CONTRACTS. 

ij  607.  {2)  Under  the  practice  of  the  court  of  chancery, 
where  the  contract  was  positively  denied  by  the  answer  and 
was  proved  only  by  the  unsupported  evidence  of  one  wit- 
ness, that  was  not  allowed  to  prevail :  but  where  the  one  mt- 
ness  was  corroborated  in  his  statements  ])y  circumstances, 
the  proof  might  prevail  over  the  denial,  (/t)  But  now  that 
the  defense  is  not  put  in  upon  oath,  the  court  would,  no 
doubt,  feel  itself  justified,  in  a  proper  case,  in  acting  upon 
the  evidence  of  a  single  witness  against  the  unsworn  denial 
of  the  defendant.  But  if  the  defendant,  in  answer  to  inter- 
rogatories or  by  his  evidence,  swore  positively  to  the  denial, 
the  court  would  probably  refuse  to  act  upon  the  affirmative 
evidence  of  a  single  witness,  if  uncorroborated. 

§  608.  (3)  In  considering  the  cases  in  which  a  variation 
has  arisen  between  the  contract  alleged  and  that  proved,  it 
must  be  borne  in  mind  that  the  burthen  of  proving  his  case 
rests,  of  course,  on  the  plaintiff,  and,  therefore,  if  there  be 
any  such  conflict  of  evidence,  as  leaves  any  uncertainty  in 
the  mind  of  the  court  as  to  what  the  terms  of  the  parol  con- 
tract were,  its  interference  will  be  refused. (Z)' 

§  60®.  Therefore,  where  there  were  variations  between 
the  evidence  of  the  one  witness  and  a  memorandum  of  the 
contract  in  a  pocket-book  which  was  produced,  the  witness 

(k)  East  Inrtia  Co.  v.  Donald,  9  Ves  ,  275 ;       {D  Lindsay  v.  Lynch,  2  Sch    &  Lef.,  1;  cf. 
Morphea  v.  .lunea.  I  Svv.,  172;  Toole  v.  Med-    Price  v.  Salusbury,  32  IJeav  ,  446. 
licott,  1  J3a.  &  B  ,  393. 


1  Variance  between  contract  and  proof.]  The  contract  set  out  in  the  pleadings 
as  partly  performed,  must  be  tlie  same  one  originally  entered  into;  but,  "if 
the'contraet  proved  correspond  with  that  descril)ed  in  the  pleadings,  it  will  be 
eslablislied  and  enforced  even  if  there  is  some  variance  between  the  terms  de- 
serib"d  uud  those  proved  provided  this  variance  does  not  relate  to  matters  of 
substance  If  there  be  evidence  of  a  contract,  but  it  do  not  distinctly  appear 
what  are  the  terms  thereof,  and  there  seems  also  to  have  been  an  act  applicable 
only  on  the  supposition  of  an  agreement,  a  court  of  chancery  will  exert  itself 
to  ascertain  the  precise  terms,  and,  if  necessary  for  that  purpose,  will  direct  a 
trial  at  law,  and  then,  if  the  agreement  can  be  dehned,  and  the  acts  of  part 
performance  be  consistent  therevi^ith,  it  will  decree  a  specific  execution  thereof." 
Marcv,  J  ,  in  Harris  v,  Knickerbacker,  o  Wend.,  638:  see,  also,  Miller  v.  Cot- 
ton, 0  Ga.,  ;J4l;  PhiUiiJS  v.  Thompson,  1  John.'s  Ch.,  149;  Printup  v.  Mitchell, 
17  Ga.  558-  jNIinturn  v.  Bavlis,  US  Cal.,  13'J;  Colson  v.  Thompson,  3  Wheat., 
33(v  Bremer  v.  Wilson,  ifN.  J.  Eq  ,  180;  Chanley  v.  Hanbury,  13  Pa.  St., 
16-  Cooper  v.  Carlisle,  17  N.  J.  Eq.,  025;  Force  v.  Dutcher,  18  id.,  401,  Long 
V.  Duncan,  10  Kan.,  294;  Petrick  v.  Ashcroft,  19  N.  J.  Eq  ,  339;  Parkhurstv. 
Van  Courtlandt,  1  John.'s  Ch  ,  284;  Gosse  v.  Jones.  73  111.,  508;  Blanchard  v. 
McDougall,  6  Wis.,.  107;  Worthington  v.  Semmes.  38  Md.,  298;  Knoll  v.  Har- 
vey, 19  Wis.,  99;  Reese  v.  Kce.se,  41  Md.,  554;  Wright  v.  Wright,  31  Mich., 
380;  Allen  v.  Webb,  64  111.,  342;  Hall  v.  Hall,  1  Gill,  383;  Pierce  v.  Catron, 
23  Graft.,  588;  Shropshire  v.  Brown,  45  Ga.,  175;  Stoddart  v.  Tuck,  5  Md.,  37; 
Smith  V.  Crandall,  20  Md  ,  500. 


STATUTE   OF  FRAUDS,  ETC.  305 

mentioning  1,000  guineas,  exclusive  of  timber,  as  the  price, 
whilst  the  pocket-book  made  no  mention  of  the  timber,  the 
court  dismissed  the  bill.(m)  And  where  a  contract  was 
alleged  by  the  bill,  another  proved  by  the  plaintiff's  one 
witness,  and  a  third  admitted  by  the  two  defendants,  specific 
performance  was  decreed  according  to  the  contract  set  up  by 
the  answers  ;  but  Lord  Rosslyn  considered  that  in  strictness 
the  bill  ought  to  have  been  dismissed,  (/i.)  In  a  more  recent 
case,  where  one  contract  was  alleged  and  another  proved,  the 
bill  was  dismissed  without  prejudice  to  the  filing  of  another 
bill.(o)  The  inclination  of  Lord  Cottenham's  mind  seems  to 
have  been  to  struggle  with  apparently  conflicting  evidence, 
rather  than  to  dismiss  the  bill,  where  there  had  been  part 
performance. (^)  In  one  case  Turner,  L.  J.,  observed  that 
"there  are  cases  in  which  the  court  will  go  to  a  great  extent 
in  order  to  do  justice  between  the  parties  when  possession 
has  been  taken,  and  there  is  an  uncertainty  about  the  terms 
of  the  contract.  "(^)  And  in  the  case  of  Oxford  v.  Pro- 
vand,(r)  where  there  had  been  part  performance  of  a  con- 
tract alleged  to  be  vague  in  its  terms.  Sir  William  Erie  in 
delivering  the  judgment  of  the  privy  council  said,  '^With 
respect  to  the  supposed  vagueness  of  the  memorandum  of 
agreement,  their  lordships  propose  to  consider  what  is  the 
true  construction  of  that  memorandum,  having  regard  to 
the  terms  of  the  instrument  and  to  the  surrounding  circum- 
stances, and  also  in  refereace  to  this  suit  for  specific  per- 
formance, and  to  the  conduct  of  the  parties  in  the  interval 
between  the  making  of  the  agreements  and  the  commence- 
ment of  the  suit." 

§  61©.  Where  the  variation  between  the  contract  alleged 
and  that  proved  consists  in  the  plaintiff '  s  admission  of  some 
term  against  himself,  or  omission  of  some  term  in  his 
favor  ;{s)  or  where  the  term  which  constitutes  the  variation 
is  immaterial,  from  its  being  merely  the  expression  of  what 
would  be  implied  or  from  its  having  been  actually  per- 
formed, the  court  will  not  refuse  the  evidence  of  the  con- 

(m)  Reynolds  v  Waring.  You  ,  346.  (p)  Mundy  v.  JolUffe,  5  My   &  Cr.,  167. 

(S  Elmer  V.  Orchafd.  2  Ve's.  Jun..  243;  (q)  East  In.iia  Co.  v^  N-uthumbadoo  Veer- 

cf.  London  and  BirmiDgham  Railway  Co.  v.  asawmy  Moodelly,  7  Moo.  P.  C.  C,  4S2,  497. 

Winter,  Cr.  &  Ph.,  57.  See  supra,  §  Sls^ 

(o)  Hawkins  v.  Maltby,  L.  R.  3  Ch.,  188.  (r)  L  R.  2  P.  C_,  135 

The  fresh  biU  was  filed :  L.  R  6  Eq.,  505;  4  (s)  Cllflford  v.  Turrell,  1 1 .  &  C  C.  C,  13R. 
Ch.,200. 

20 


306        FUY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

tract.  So  that  where  a  tenant  alleged  that  he  was  to  pay 
taxes  and  do  necessary  repairs,  and  the  contract  proved 
did  not  contain  this  term  :{t)  and  again,  where  a  plaintiff 
admitted  a  contract  to  drain  the  lands  generally,  and  he 
only  proved  one  to  drain  where  necessary,  and  he  also 
stated,  as  part  of  the  contract,  that  he  was  to  lay  certain 
arable  land  into  pasture,  which  was  not  proved  by  the  evi- 
dence :(w)  in  each  of  these  cases,  the  variation  was  con- 
sidered as  no  reason  for  rejecting  the  evidence  of  the 
contract.  (?))* 

§  611.  It  is,  perhaps,  not  quite  clearly  decided  whether 
the  court  can,  in  any  case,  direct  an  inquiry  into  the  terms 
of  a  contract,  when  it  has  not  been  sufficiently  proved  to 
enable  the  court  to  pronounce  a  final  judgment  upon  the 
evidence  before  it.  Lord  Manners  (w)  strongly  expressed 
an  opinion  that  the  court  has  no  such  jurisdiction,  a  view 
which  seems  to  have  met  with  the  approval  of  the  highest 
authorities,  (a:;)  And  in  the  case  of  Crook  v.  Corporation  of 
Seaford,(^)  where  Stuart,  Y.  C,  had  made  an  order  giving 
the  parties  liberty  to  apply  in  chambers  in  reference  to  the 
performance  of  the  contract,  Lord  Ilatherley  said,  that  he 
felt  some  difficulty  about  the  decree,  for  it  was  the  duty 
of  the  court  to  ascertain  whether  there  was  a  contract,  and, 
if  not,  to  dismiss  the  bill ;  but,  being  himself  of  oi)inion 

(t)  Gregory  v.  Mighell,  18  Ves.,  328.  (x)  St  Leon.  Vend.,  126;  Stoiy,  Eq.  Jur.,  § 

(u)  Mundy  v.  Jolliffe,  5  My.  &  Cr.,  167.  764;  cf.  London  and  Birmingham  Kailway 

(V)  See  supra,  §  279.  Co.  v.  Winter.  Cr.  &  Ph.,  57. 

(w)  Savage  v.  Carroll,  2  Ball  &  B.,  451.  (y)  L.  R.  10  Eq.,  678;  6  Ch.,  551. 


1  How  the  contract  should  he  pleaded.']  It  is  suCacient  to  allege  that  there  was 
a  written  contract;  that  it  was  signed  is  implied.  Eist  v.  Hobson,  1  Sim.  & 
Stu.,  543;  Barkworth  v.  Young,  4  Drew,  1.  The  defendant,  in  his  answer, 
must  insist  that  the  contract  was  not  in  writing,  where  the  answer  admits  the 
agreement.  Gunter  v.  Halsey,  Ambl.,  586;  Rondeau  v.  Wyatt,  2  H.  Bl,,  68; 
Limondson  v.  Sweed,  Gilb.,  35;  Harris  v.  Kuickerbacker,  5  Wend.,  638;  Tal- 
bot V.  Bowen,  1  A.  K.  Marsh.,  437;  Coles  v.  Bowne,  10  Paige's  Ch.,  526; 
Champlin  v.  Parish,  11  id.,  405;  Dean  v.  Dean,  9  N.  J.  Eq.,  425;  Walker  v. 
Hill,  21  id.,  191;  Kirksey  v.  Kirksey,  30  Ga.,  156;  Hollingshead  v.  McKenzie, 
8  id.',  457;  Artz  v.  Grove,  21  Md.,  456;  Garner  v.  Stubblefield,  5  Tex.,  552; 
Woods  V.  Dillie,  11  Ohio,  455;  Dyer  v.  Martin,  4  Scam.,  146;  Tarlton  v.  Vietes, 
1  Gilm.,  470,  Switzer  v.  Skiles,  3  id.,  529;  Minns  v.  Morse,  15  Ohio,  568;  Trap- 
nail  V.  Brown,  19  Ark.,  39;  Winn  v.  Albert,  2  Md.  Ch.,  169;  McGomen  v. 
West,  7  Mo.,  569;  Whiting  v.  Gould.,  2  Wis.,  552;  Semmes  v.  Worthington, 
38  Md.,  298;  Burt  v.  Wilson,  28  Cal.,  632;  Vandwyne  v.  Vreeland,  12  N.  J. 
Eq.,  142;  Esmay  v.  Groton,  18  111.,  483;  Billingslea  v.  Ward,  33  Md.,  48.  A 
contract  is  not  illegal  for  being  within  the  Statute  of  Frauds.  The  court  will 
not  interpose  the  statute  in  such  a  case;  it  must  be  pleaded,  and  where  the 
pleadings  do  not  urge  the  defense,  it  will  generally  be  regarded  as  waived. 
Fall  V.  Hazelrigg,  45  Ind.,  576. 


STATUTE   OF   FRAUDS,  ETC.  307 

that  a  contract  had  been  made  out,  his  lordship  varied  the 
order  by  striking  out  the  reference  to  chambers,  and  declar- 
ing what  the  contract  between  the  parties  was,  and  ordering 
specific  performance  of  it. 

§  613.  The  authorities  upon  the  point  now  under  discus- 
sion to  which  reference  has  been  made,  were  all  under  the 
old  practice,  and  were  greatly  influenced  by  the  incapacity 
of  the  court  of  chancery,  except  under  very  unusual  cir- 
cumstances, to  permit  an  amendment  of  the  record  at  the 
hearing.  The  high  court  will  probably  feel  itself  freed  from 
some  of  the  difiiculties  which  arose  in  dealing  with  cases 
when  one  contract  was  alleged  and  another  proved  :  it  will 
probably,  for  the  most  part,  feel  it  possible  to  deal  with  the 
matter  once  for  all,  and  not  to  postpone  the  real  discussion 
till  a  further  proceeding  shall  have  been  taken  :  it  is  proba- 
ble that  the  main  question  will  always  appear  to  be — Was 
there  really  and  in  truth  a  contract  or  not  ?  that  if  there 
were,  the  court  will  generally  allow  the  needful  amendment 
to  put  that  contract  in  issue  :  that  if  there  were  not,  it  will 
generally  give  judgment  for  the  defendant,  without  reserv- 
ing any  right  to  the  plaintifi:  to  institute  fresh  proceedings. 
But  the  circumstances  will  govern  the  discretion  of  the 
court  in  each  case  which  may  arise. 

§  613.  (4)  It  remains  to  consider  the  cases  in  which  the 
contract  alleged  by  the  plaintiff  has  been  denied,  but  an- 
other has  been  admitted  by  the  defendant.  In  such  cases, 
if  the  acts  of  part  performance  were  consistent  alike  with 
the  one  contract  and  the  other.  Lord  Redesdale  seems  to 
have  considered  that  there  was  no  case  to  admit  proof  of 
the  contract  of  alleged  by  the  bill,  and  that  the  acts  of  part 
performance  must  be  such  as  to  show  them  to  have  been  done 
in  pursuance  of  the  very  same  contract  as  that  alleged,  (2) 
It  is,  however,  submitted  that  this  view  of  the  case  is  incon- 
sistent with  the  general  doctrine  of  the  operation  of  the  acts 
of  part  performance  ;  that  they  open  the  whole  question  of 
the  terms  of  the  contract  to  jDarol  evidence  ;  and  that  as  a 
written  contract  where  there  are  acts  of  part  performance 
may  be  added  to  by  parol,  (a)  so  a  contract  set  up  by  the 
defense  may  be  modified  by  parol.     If  this  were  not  so, 

(«)  Lindsay  v.  Lynch,  1  Sch.  &  Lef.,  1.  See       (a)  Sutherland  v.  Briggs,  1  Ha.,  26. 
supra,  §  558. 


308        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

the  plaintiff  would  be  at  the  mercy  of  the  defendant ;  for, 
whereas,  if  he  simply  denied  the  contract,  the  plaintiff 
would  have  an  opportunity  of  proof  by  parol :  when  he 
set  up  some  other  contract,  all  that  evidence  would  be  ex- 
cluded, {b) 

§614.  It  maybe  added  that  the  existence  of  a  signed 
but  incomplete  contract  is  no  obstacle  in  the  way  of  proving 
the  additional  terms  by  parol  where  there  is  part  perform- 
ance ;(c)  for  the  whole  might  have  been  proved  by  parol, 
and  so  may  part.  The  doctrine  of  parol  variation  has,  of 
course,  no  application,  where  by  reason  of  acts  of  part  per- 
formance parol  evidence  is  admissible. 

(6)  Of.,  also   the   case  of    Tomkinson  v.       (c)  Sutherland  v.    Briggs,  1    Ha.,  26,  35. 
Staight,  17  C.  B.,  697.  Consider  Price  v.  Saluabury,  32  Beav.,  440. 


CONTRACTS  BY  CORPORATIONS.  309 


CHAPTER  XII. 

OF  THE  FORMALITIES  REQUIRED  IN  CONTRACTS  BY 
CORPORATIONS. 

§  615.  Questions  relative  to  tlie  formalities  requisite  to 
render  a  contract  binding  on  a  body  corporate  have  so  often 
arisen  in  proceedings  for  specific  performance  that  it  is 
expedient  to  give  an  outline  of  the  law  on  this  point. 

§  616.  When  the  party  whom  it  is  sought  to  charge  with 
a  contract  is  a  corporation,  the  contract  must,  subject  to  the 
excej)tions  mentioned  below,  be  under  the  common  seal ;  it 
being  the  rule  of  law  {a)  that  in  no  other  way  can  a  corpora- 
tion express  its  intentions.  This  rule  is,  however,  subject 
to  certain  important  exceptions. 

§  617.  (1)  The  rule  does  not  apply  to  the  contracts  of 
trading  corporations  (&)  having  relation  to  the  trade  which 
they  are  constituted  to  carry  on,  nor  to- contracts  of  so  every- 
day a  character  as  would  make  the  afiixing  of  the  common 
seal  to  them  a  practical  inconvenience,  (c) 

§  618.  (2)  There  are  various  statutes  enabling  certain 
classes  of  corporations  to  contract  otherwise  than  under 
their  common  seal.  The  principal  provisions  for  this  pur- 
pose now  in  force  are  comprised  in  the  companies  clauses 
consolidation  act,  1845,  which  regulates  railways  and  other 
undertakings  of  a  public  character,  and  the  companies  act, 
1867,  which  regulates  comxDanies  constituted  under  the  com- 
panies act,  1862. 

§  619.  The  companies  clauses  consolidation  act,  1845  (8 
and  9  Vict.,  c.  16),  §  97, (rZ)  is  as  follows : 

"The  power  which  may  be  granted  to  any  such  committee 
[of  directors]  to  make  contracts,  as  well  as  the  power  of  the 

(n)  1  Bla.  Comm.,  475.  620;  Smith  v.  Birmlm^ham  and  Staffordshire 

(6)  South  of  Ireland  Colliery  Co.  v.  Wad-  Gas-LlRlit  Co..  1  A.  &  E,  526. 

die,  L.  R.  3  C.  P.,  403;  4  C.  P.,  617.  (d)  See  Leominster  Canal  NavlRatlon  Co. 

(c)  Sanders  v.  St.  Neota  Union,  8  Q  B.,  110;  v  Shrewsbury  and  Hereford  Railway  Co.,  3 

Clarke  v.Cuckfield  Union,  21  L.  J.  Q.  B..349;  K.  &  J.,654. 

Nicholson  V.  Bradfleld  Union,  L.  K.  1  Q.  B., 


310         FIIY  OX  srECIFIC  PERFOmiAXCE  OF  CONTRACTS. 

directors  to  make  contracts  on  behalf  of  the  company,  may 
lawfully  be  exercised  as  follows  (that  is  to  say) : 

"With  respect  to  any  contract  which,  if  made  between 
private  persons,  would  be  by  law  required  to  be  in  writing, 
and  under  seal,  such  committee  or  the  directors  may  make 
such  contract  on  behalf  of  the  comjDany  in  writing,  and 
nnder  the  common  seal  of  the  company,  and  in  the  same 
manner  nuiy  vary  or  discharge  the  same : 

"With  respect  to  any  contract  which,  if  made  between 
private  persons,  would  be  by  law  required  to  be  in  writing, 
and  signed  by  the  parties  to  be  charged  tlierewith,  then  such 
committee  or  the  directors  may  make  such  contract  on  be- 
half of  the  company  in  writing,  signed  by  such  committee 
or  any  two  of  them,  or  any  two  of  the  directors,  and  in  the 
same  manner  may  vary  or  discharge  the  same : 

"With  respect  to  any  contract  which,  if  made  between 
private  persons,  would  by  law  be  valid  although  made  by 
parol  only,  and  not  reduced  to  writing,  such  committee  or 
the  directors  may  make  such  contract  on  behalf  of  the  com- 
pany by  parol  only  without  writing,  and  in  the  same  manner 
may  vary  or  disciiarge  the  same  : 

"And  all  contracts  made  according  to  the  provisions 
herein  contained  shall  be  effectual  in  law,  and  shall  be  bind- 
ing upon  the  company  and  their  successors,  and  all  other 
parties  thereto,  their  heirs,  executors  or  administrators,  as 
the  case  may  be ;  and  on  any  default  in  the  execution  of 
any  such  contract,  either  by  the  comi^any  or  any  other  party 
thereto,  such  actions  or  suits  may  be  brought,  either  by  or 
against  the  company,  as  might  be  brought  had  the  same 
contract  been  made  between  private  persons  only." 

§  620.  The  37th  section  of  the  companies  act,  1867  (30 
and  31  Vict.,  c.  131)(e),  is  as  follows  : 

"  Contracts  on  behalf  of  any  company  under  the  princi- 
pal act  [the  comj)anies  act,  1862],  may  be  made  as  follows 
(that  is  to  say) : 

"(1)  Any  contract  wdiich,  if  made  between  private  i)ersons, 
would  be  by  law  required  to  be  in  writing,  and  if  made  ac- 
cording to  English  law  to  be  under  seal,  may  be  made  on 
behalf  of  the  company  in  writing  under  the  common  seal 

(e)  See  Beer  v.  London  and  Paris  Hotel  Co.,  L.  R.  20  Eq.,  412;  Jones  v.  Victoria  Graving 
Dock  Co.,  2  Q.  B.  D.,  314. 


COISTTEACTS   BY   COKPOEATIONS.  311 

of  the  company,  and  such  contract  may  be  in  the  same 
manner  varied  or  discharged  : 

"(2)  Any  contract  which,  if  made  between  private  per- 
sons, would  be  by  law  required  to  be  in  writing,  and  signed 
by  the  parties  to  be  charged  therewith,  may  be  made  on 
behalf  of  the  company  in  writing,  signed  by  any  person 
acting  under  the  express  or  imj^lied  authority  of  the  com- 
panj^,  and  such  contract  may  in  the  same  manner  be  varied 
or  discharged : 

"  (3)  Any  contract  which,  if  made  between  private  per- 
sons, would  by  law  be  valid  although  made  by  i^arol  only, 
and  not  reduced  into  writing,  may  be  made  by  parol  on 
behalf  of  the  company  by  any  person  acting  under  the  ex- 
press or  implied  authority  of  the  company,  and  such  con- 
tract may,  in  the  same  way,  be  varied  or  discharged : 

"And  all  contracts  made  according  to  the  provisions  herein 
contained  shall  be  effectual  in  law,  and  shall  be  binding  upon 
the  company  and  their  successors,  and  all  other  i)arties 
thereto,  their  heirs,  executors  or  administrators  as  the  case 
may  be." 

§631.  Somewhat  similar  provisions  with  regard  to  the 
contracts  of  companies  were  contained  in  the  joint-stock 
companies  registration  act,  7  and  8  Yict.,  c.  110,  §§  44-46; 
the  joint-stock  banks  registration  act,  id.,  c.  113,  §  22  (as  to 
bills  of  exchange  and  promissory  notes  only),  and  the  joinl^- 
stock  companies  act,  1856,  §  41.  But  these  acts  are  now 
repealed. 

§  62S.  (3)  Another  exception  arises  from  the  doctrine  of 
part  performance  ;  for  it  appears  to  be  clear  that  such  part 
performance  as  will  prevent  an  ordinary  defendant  from 
setting  up  the  defense  of  the  Statute  of  Frauds,  will  pre- 
vent a  defendant  company  from  setting  up  either  that  de- 
fense or  a  defense  grounded  on  the  absence  of  the  corporate 
seal,  or  of  the  statutory  formalities,  in  accordance  with 
which  the  company  may  be  enabled  to  contract.  This  was 
clearly  laid  down  in  the  case  of  Wilson  v.  West  Hartlepool 
Harbor  and  Railway  Co.,(/)  and  there  are  other  authorities 
leading  to  the  same  conclusion,  (p')    It  must,  however,  be 

(f)  34  Beav.,  187;  2  De  G.  J.  &  S.,475.  LIndsey  v.  Great  Northern  Railway  Co.,  10 

\g)  Marshall  v.  Corporation  of  Queenbor-    Ha.,  664;  Crook  v.  Corporation  of  Seaford, 
ough,  1  S.  &  S.,520;  Maxwell  v.  Dulwich  Col-    L.  R.  10  Eq.,  678;  6Ch.,551;  Mayor,  etc.,  of 
lege,  7  Sim.,  222;  London  and  Birmingham    Drogheda  v.  Holmes,  5  H.  L.  C,  460. 
Railway  Co.  v.  Winter,  Cr.  &  Ph.,  57;  Earl  of 


312        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

added  that  part  performance  by  a  company  of  a  contract 
not  under  seal,  which  is  not  in  its  nature  the  subject  of 
specific  performance,  as,  e.  g.,  a  contract  for  work  and 
labor,  will  not  give  the  court  jurisdiction. (7i) 

§  623.  The  subject  chiefly  dealt  with  in  this  chapter  is 
more  fully  discussed  in  various  works  on  corporations  and 
companies  with  w^hich  our  law  libraries  abound,  amongst 
which  the  w^ell-known  work  of  Mr.  Justice  Lindley  has 
long  held  the  foremost  place. 

(ft)  Crampton  v.  Varna  Railway  Co.,  1,.  R.  7  Ch.,  562;  supra,  §  84. 


MISREPRESENTATION.  313 


CHAPTER  XIII. 

OF   MISREPRESENTATION. 

§  624.  A  misrepresentation,  having  relation  to  tlie  con- 
tract, made  by  one  of  the  parties  to  the  other  of  them,  is  a 
ground  for  refusing  the  interference  of  the  court  in  specific 
performance  at  the  instance  of  the  former  party  ;  and  may 
in  certain  cases  be  a  ground  for  its  active  interference  in 
setting  aside  the  contract  at  the  instance  of  the  latter,  (a)* 

(a)  Edwards  V.  M'Leay,  Coop.,  308;  S.  C.,2  542,  reversed  in  D.  P.,  s.  n.,  Wilde  v.  Gibson, 
Sw.,  287;  Gibson  v.  DEsie,  2  Y.  &  C.  C.  C,    1  H.  L.  C,  605;  St.  Leon.  Law  of  Prop.,  614. 

'  False  statements  with  relation  to  a  contract  sought  to  be  specifically  enforced.'^ 
Both  law  and  equity  will  prevent  the  enforcement  of  a  contract,  where  there 
has  been  a  deliberate  misrepresentation  of  a  material  fact.  Broderick  v.  Brod- 
erick,  1  P.  Wms.,  240;  Jennings  v.  Broughton,  6  De  G.  M.  &  G.,  126;  McShane 
V.  Hazlehurst,  50  Md.,  107.  Where  the  statements  are  recklessly  made,  with- 
out knowledge  of  their  truth,  this  is  a  fraud,  even  when  there  is  no  evil  inten- 
tion. Taylor  v.  Ashworth,  11  M.  &  W.,  413;  Rawlins  v.  Wickham,  3  De  G. 
&  J.,  804;  Stone  v.  Demy,  4  Mete,  151;  Hazard  v.  Irwin,  1  B.  Pick.,  96; 
Lindsley  v.  Veasey,  62  Ala.,  421.  Where  one  party  to  a  contract  deliberately 
makes  a  misrepresentation  with  relation  to  it,  a  court  of  equity  will  refuse  to- 
decree  specific  performance  between  the  parties.  Edwards  v.  McLeay,  3 
Swanst.,  287;  Lord  Gordon  v.  Lord  Hutford,  2  Mad.,  106;  Monroe  v.  Taylor, 
8  Hare,  56;  Wilde  v.  Gibson,  1  H.  of  Lds.,  605;  Clowes  v.  Higginson,  1  Ves. 
&  Beav,,  524;  Stapylton  v.  Scott,  13  Ves.,  425;  Swaisland  v.  Dearsley,  29^ 
Beav.,  430;  Cockrane  v.  Willis,  L.  R.,  1  Ch.,  58;  Harnett  v.  Yielding,  2  Sch. 
«fcLef.,  549;  Wuesthoff  v.  Seymour,  22  N.  J.,  69;  Plummer  v.  Kepler,  26  id., 
481;  James  v.  State  Bank,  17  Ala.,  69;  Fuller  v.  Perkins,  7  Ohio,  196;  Solinger 
V.  Jewett,  25  111  ,  479;  Gilroy  v.  Alis,  23  Iowa,  174;  Cuif  v.  Dorland,  50  Barb., 
438;  Snedaker  v.  Moore,  2  Duvall,  542;  Spure  v.  Benedict,  99  Mass.,  406;  Hill 
V.  Brower,  76  N.  C,  124. 

Fraudulent  representations  ;  partnership  formed  on  account  of.]  A  party  made 
false  and  fraudulent  representations  with  respect  to  the  extent  of  his  business, 
and  a  partnership  was  made  for  a  definite  time.  Held,  that  equity  would  de- 
cree that  the  partnership  should  be  annulled,  and  that  the  fraudulent  party 
should  be  restrained  from  the  use  of  his  partner's  name  in  the  business;  and 
that  defendant  must  repay  the  money  received  on  account  of  the  partnership. 
Smith  V.  Everett,  126  Mass.,  304.  It  will  be  good  reason  for  rescinding  the 
contract  where  it  is  shown  that  a  direct  falsehood  has  been  told,  or  a  truth  has 
been  concealed,  which,  if  known,  would  have  been  a  good  reason  for  causing 
the  terms  of  the  contract  to  be  different.  In  such  a  case,  the  party  who  is 
damaged  by  such  fraud  may,  if  an  action  is  brought  against  him  founded  on 
the  contract,  successfully  defend,  or  he  may  rescind  the  contract ;  he  may  also 
have  the  damages  that  he  can  show  himself  to  have  sustained.  Tbweatt  v. 
McLeod,  56  Ala.,  375;  see,  also,  Raynor  v.  Wilson,  43  Md.,  440;  Comyn  on 
Contracts,  vol.  3,  304.  In  a  note  to  Lynch  v.  Brockhoff,  15  Abb.  Pr.,  357,  wiH 
be  found  the  rule  which  operates  to  prevent  specific  performance  being  decreed 


314         FRY  O.V  SPECIFIC  PFRFOIIMANCE  OF  C0XTRAC1\«^. 

Kepresentations  are  most  usually  by  words,  written  or 
spoken,  but  they  may  be  by  act,  as,  for  instance,  by  the  per- 
formance of  fraudulent  experiments,  on  the  faith  of  which 
a  contract  was  entered  into  for  a  license  under  a  patent.  (&)' 

(&)  Lovellv.  Hicks,  2  Y.  &  C.Ex.,46.  

where  fraud,  surprise,  mistake  or  hardship  are  pleaded.  See,  also,  Quinn  v. 
Roath,  37  Conn.,  16. 

Either  the  law  or  the  facts  may  he  fraudulently  misrepresented.  ]  A  court  of 
equity  -will  not  onlj^  refuse  to  decree  specific  performance  when  such  is  the  case, 
but  will  relieve  against  it.     Broadwell  v.  Broadwell,  1  Gilm.,  599. 

For  examples  of  misrepresentation  wliicU  vere  relieved  against,  see  Wells  v.  Mil- 
lett,  23  Wis.,  64;  Holmes' App.,  77  Pa.  St.,  50;  Carmichael  v.  Vandebur,  50 
Iowa,  651;  Hickey  v.  Drake,  47  Mo.,  369;  Kelley  v.  Sheldon,  8  Wis.,  258; 
Chestnut  Hill  Res.  Co.  v.  Chase,  14  Conn.,  123;  Warner  v.  Daniels,  1  Wood. 
&  Minot,  90;  Gazzard  v.  Webb,  4  Porter  (Ala.),  73.  In  Dale  v.  Roosevelt,  5 
John.'s  Ch.,  173  (aff'd,  2  Cow.,  129),  there  was  no  evidence  of  fraud,  or  inten- 
tional misrepresentation. 

Deception  may  consist  of  acts  as  icell  as  words.]  "A  nod,  or  a  wink,  or  a  shake 
of  the  head,  or  a  smile  from  the  purchaser,  intended  to  induce  the  vendor  to 
believe  the  existence  of  a  non-existing  fact,  which  might  influence  the  price  of 
the  subject  to  be  sold,  is  a  fraud  at  law.  So,  a  fortiori,  would  work  a  contri- 
vance on  the  part  of  the  purchaser,  better  informed  than  the  vender  of  the  real 
value  of  the  subject  to  be  sold,  to  hurry  the  vendor  into  an  agreement  without 
giving  him  the  opportunitj^  of  being  fully  informed  of  its  real  value,  or  time 
to  deliberate  and  take  advice  respecting  the  conditions  of  the  bargain."  Lord 
Campbell,  in  Walters  v.  Morgan,  3-De  G.  F.  &  J.,  724. 

'  If  one  person  makes  a  representation  to  another  who  is  about  dealing  with 
Mm  upon  the  faith  thereof,  he  shall  make  it  good  if  he  knew  it  to  be  false ; 
but  to  induce  a  court  of  equity  to  interfere  in  such  a  case,  it  must  be  shown 
that  the  misrepresentation  was  in  a  matter  important  to  the  interests  of  the  other 
party,  and  that  it  actually  did  mislead  him.  And  the  same  consequences  fol- 
low a  misrepresentation,  if  the  party  make  the  assertion  recklessly,  without 
knowing  whether  it  was  true  or  false,  or  even  innocently,  if  it  operated  as  a 
surprise.  But  a  misrepresentation  in  a  matter  of  opinion  and  fact,  open  to  the 
inquiries  of  both  parties,  and  in  respect  to  which  neither  can  be  presumed  to 
have  trusted  the  other,  unless  there  be  fraud,  in  cases  of  peculiar  relationship 
or  confidence,  or  whether  the  other  party  has  justly  reposed  upon  it,  and  been 
misled,  furnishes  no  gi-ound  for  relief.  Juzan  v.  Toulmin,  9  Ala.,  662.  So, 
where  the  vendor  of  a  forty-acre  tract  of  land,  well  knowing  the  location  of 
the  corners  and  lines,  represented  one  of  the  lines  so  to  run  as  to  embrace  nine 
or  ten  acres  of  cleared  land,  when,  in  truth,  it  contained  much  less,  and  the 
difference  of  value  between  the  land  pointed  out  and  that  conveyed  amounted 
to  almost  one-third  the  purchase  money,  it  was  held  that  these  facts  were  such 
misrepresentations  as  entitled  the  vendee  to  have  the  contract  set  aside.  Elliot 
V.  Boaz,  9  Ala.,  272.  Warner  v.  Daniels,  1  W.  &  M.,  90,  is  also  a  case  in  point.  ■ 
There  D.  purchased  a  farm,  ])aying  him  therefor  in  shares  of  the  stock  of  the 
Cleft  Ledge  Granite  Co.,  which  he  represented  to  be  worth  $6,000.  Several 
representations  were  made  to  W.  by  D.,  and  also  by  F.,  who  was  concerned  in 
the  same  company,  to  induce  W.  to  take  the  stock  in  payment,  which  repre- 
sentations proved  to  be  false,  and  the  stock  worthless.  On  a  l)ill  in  equity  by 
W.  for  relief,  it  was  decreed  that  the  sale  should  be  rescinded,  the  shares  re- 
conveyed  by  W.  to  D.,  and  the  farm  by  D  to  W.,  and  a  master  appointed  to 
report  the  amount  of  rents  and  waste,  after  deducting  permanent  improvements 
which  should  be  allowed  by  W.  to  D.  Where  a  conveyance  is  set  aside  for  mis- 
representations, the  ground  of  the  decision  must  be  considered  to  have  been 
fraud;  and,  in  such  a  case,  interest  is  to  be  paid  and  the  money  refunded  with 
out  reference  to  any  demand,  and  from  the  time  it  was  received,  and  interest 
on  the  interest  from  the  time  of  its  payment  on  any  notes  originally  given. 
Doggett  V.  Emerson,  1  W.  &  M.,  195.     It  is  of  no  consequence  that  the  corf- 


MISREPRESENTATIOIf.  olf) 

§  G95.    Sacli   misrex)resentations  may  be   resolved  into 
some  or  all  of   the  following  elements,   namely, — lirst,   a 


tract,  of  which  a  recission  is  sought  oa  these  grounds,  does  not  contain  the 
misrepreseutation  upon  which  relief  is  asked.     Hough  v.  Richardson,  8  Story, 
U59.     And  where  the  vendee  of  land  made  representations  respecting  the  value 
of  what  wan  taken  for  the  consideration,  which  were  false  in  material  points, 
and  which  influenced  the  vendor  to  sell,  it  was  held  that  whether  the  vendee 
knew  them  to  be  false  or  not,  they  would  vitiate  the  sale.     So,  also,  if  thej'- 
were  made  by  another  person,  in  the  presence  of  the  vendee,  and  he  was  bene- 
fited by  them.     Warner  v  Daniels,  1  W.  &  M.,  90.     The  same  consequences 
would  result,  although  there  w'as  no  fraudulent  intent  on  the  part  of  the  ])arty 
making  the  representations.     Taylor  v.  Fleet,  1  Barb.,  471.     It  is,  however, 
necessary  that  the  party  deceived  should,  in  cases  arising  from  false  representa- 
tions, have  entered  into  the  contract  upon  the  faith  of  these  representations. 
Id.     A  misrepresentation  made  by  the  vendor  in  a  matter  of  mbstanc-e  affecting 
the  value  of  the  estate  sold,  is  a  good  defense  to  a  suit  by  him  for  a  specific 
performance,  although  both  vendor  and  vendee  were  ignorant  of  its  untruth. 
Best  V.  Stow,  3  Sandf.'s  Ch.,  298.     Relief  will  not  be  granted  where  the  vendee 
has  had  opportunity  of  making  an  examination  of  the  property,  concerning 
which  the  false  representations  have  been  made      Mason  v.  Crosby,  1  W.  ic  M  , 
342;  Houirh  v.  Richardson,  ?,   Story,  059.     And  so  where  A.  gave  a  certificate 
that  certain  lands  which  he  had  "partially  explored "  contained,  "as  far  as  my 
knowledge  extends,"  a  certain  average  of  timber,  and  it  appeared  that  the  pur- 
chasers, to  w^hom  it  was  given,  had  as  full  means  of  knowledge  as  A.,  it  was 
held  that  they  were  not  entitled  to  place  implicit  reliance  thereon,  and  make  it 
the  basis  of  their  contract,  but  that  they  should  have  investigated  the  grounds 
of  the  opinion  therein  expressed,  and  the  extent  of  the  exploration  by  A.     Id. 
But  an  examination,  however,  will  not  prevent  a  recovery  for  fraud,  if  false- 
hood w^as  practiced  in  respect  to  some  of  the  examination;  as,  for  example,  the 
quality  of  timber  in  this  case,  and  the  size  of  streams  on  the  lands  sold  upon 
which  to  float  timber,  or  any  matter  w^ithin  the  vendor's  knowledge;  and  if  the 
purchaser,  reiving  in  part  oii  the  false  representations,  made  only  a  slight  exam- 
ination, he  wiil  be  entitled  to  relief.    Mason  v.  Crosby,  1  AV.  ct  jNI  ,  342.    Never- 
theless, no  purchaser  is  at  liberty  to  remain  intentionally  ignorant  of  tacts 
relatino-  to  his  purchase  witliin  his' reach,  and  then  claim  protection  as  an  inno- 
cent purchaser.     Eldredge  v.  Jenkins,  3  Story,  181.     Although,  when  a  party 
to  a  contract  places  a  known  trust  and  confidence  in  the  other  party,  and  acts 
upon  his  opinion,  any  misrepresentation  by  the  party  confided  in,  in  a  material 
matter  constituting  an  inducement  to  the  act  of  the  other  parly,  and  by  which 
an  undue  advantage  is  taken,  will  be  treated  with  severity,  and  regarded  as  a 
fraud.     Shaeffer  v.  Sleade,  7  Blackf.,  178-     But  no  misrepresentation  can  have 
the  effect  of  barring  the  rights  of  a  party,  unless  another  person  is  injured 
thereby,  by  being  induced  to  part  with  his  property,  or  unless  it  be  so  gross  as 
to  amount  to  pro^of  of  fraud.     Stuart  v.  Luddington,  1  Rand.,  4G3;  see  Morgau 
V  Bliss,  2  Mass.,  112;  Fuller  v.  Hcirdon,  25  Me.,  243;  Ide  v.  Gray,  11  \  erm., 
filG;  Farrar  v.  Alston,  1  Dev..  69.     Misrepresentations  may  arise  where  a  party 
makes  a  statement  which  is  literallv  true,  but   substantially  false      Corbett  v. 
Brown,  8  Bing.,  33;  1   Moored  Scott.  85.     In  this  case  the  detendant  s  son 
having  purchased  goods  from  the  plaintiffs  on  credit,  they  wrote  to  t lie  detend- 
ant requesting  to  know  whether  his  son  had,  as  he  stated,  i:3i)()  capital  his  own 
property,  to  commence  business  with;  to  which  the  deientlant  replied  that  his 
son's  statement  as  to  the  £300  was  perfectly  correct,  as  the  defendant  had  ad- 
vanced him  the  money.     It  was  proved  that,  at  the  time  of  the  advance  the  de- 
fendant had  taken  a  promissory  note  from  the  son  for  £300,  payable  on  demand, 
with  interest,  which  interest  was  paid.     Six  months  after  this  communicatioa 
to  the  plaintifTs,  the  defendant's  son  became  bankrupt.     Held,  that  it  was  prop- 
erly left  to  the  iury  to  say  w^hether  the  representation  made  by  the  detendant 
was  false  within  his  own  knowledge,  and,  the  jury  having  found  a  verdict  for 
him,  the  court  granted  a  new  trial.     Denny  v.  Gihnan,  26  -Me.   14'.t,  is  a  case  of 
the  same  kind.     See,  also,  Allen  v.  Addington,  7  WendL,  9:  A\ard  y.  Center  _.:, 
John  's  R.,  271;  Upton  v.  Vail,  6  id.,  181;  Barney  v.  Dewey,  13  id.,  224,  o9a. 


316        FRY  ON  SPECIFIC  PEKFOUMANCE  OF  CONTRACTS, 

Statement  actually  untrue :  secondly,  the  making  of  that 
statement  by  a  party  to  the  contract :  thirdly,  the  condition 
of  mind  of  the  person  making  the  statement  as  to  its  truth 
or  untruth :  fourthly,  the  intent  in  the  party  making  the 
statement  to  induce  the  other  party  to  enter  into  the  con- 
tract :  fifthly,  the  reliance  on  the  statement  by  the  party  to 
whom  it  is  made :  sixthly,  the  statement  having  such  a  rela- 
tion to  the  contract  as  that  the  statement  being  false  makes 
the  contract  unconscionable. 

§  620.  It  will  be  desirable  to  discuss  these  points  sepa- 
rately ;  and,  in  doing  so,  it  must  be  remembered  that  it 
makes  a  material  difference  whether  the  misrepresentation 
in  question  is  alleged  by  way  of  defense  to  an  action  for 
specihc. performance,  or  to  a  common  law  action  on  the  con- 
tract, or  as  the  ground  for  an  action  of  deceit,  or  for  the 
rescission  of  the  contract ;  for  somewhat  less  than  the  in- 
gredients requisite  for  either  of  the  two  latter  jDroceed- 
ings  (c)  will  suffice  to  prevent  the  active  interference  of  the 
court  in  specific  performance.  The  object  of  the  present 
chapter  being  to  consider  misrepresentations  in  relation  to 
specific  performance,  it  is,  of  course,  only  incidentally  and 
very  partially  discussed  in  any  other  relation. 

§  627.  A  misrepresentation  may  or  may  not  be  a  fraud. 
Where  it  is  false  to  the  knowledge  of  the  person  making  it, 
it  is  a  fraud.'     Where  its  falsity  was  not  known,  it  may 

(c)  Attwoorl  V.  Small,  6  Cl.  &  Fin.,  232,  395,  Eq  ,  485.    Consider  Arkwright  v.  Ncwbold, 

444;  Lovell  v.  Hicks,  2  Y.  &  C,  40,  51 ;  Abera-  29  W.  K.,  455.  reversing  S.  C,  28  id.,  828;  4!> 

man  Ironworks  V.  Wickens,  L.  R.  4Ch.,  101,  L.J  Ch.,684. 
reversing  the  decree  of  Malins,  V.  C,  L.  R.  5 

^Innocent  misrepresentation,  and  asserting  a  fact  icithout  knowledge.']  '■The 
gist  of  the  inquiry  is,  not  whether  the  party  making  the  statement  knew  it  to 
be  false,  but  whether  the  assertion  uttered  as  true  was  believed  by  the  party  to 
whom  it  was  made  to  be  true,  and  if  false,  deceived  him  to  his  injurj^.  The 
consequences  of  an  innocent  misrepresentation,  if  there  can  be  such  a  thing, 
must  fall  on  him  who  was  the  author  of  it,  on  the  principle  that  the  acts  of  even 
an  innocent  man  shall  prejudice  him,  rather  than  a  stranger  equally  innocent." 
Gibson,  Ch.  J.,  in  Tyson  v.  Passmore,  2  Pa.  St.,  122.  Where  a  party  makes  a 
representation  as  true,  and  has  no  positive  knowledge  as  to  its  truth  or  falsity, 
he  is  guilty  of  reckless  negligence,  and  if  another  party  is  misled  he  is  responsi- 
ble. "Pulsiford  v.  Richards,  17  Beav.,  87;  Eeese  v.  Wyman,  9  Ga,,  439;  Hunt 
v.  Moore,  2  Pa.  St.,  105;  Smith  v.  Richards,  18  Pet  ,  20;  Hough  v.  Richardson, 
3  Story,  659:  York  v.  Gregg,  9  Tex,  85;  Turnbull  v  Gadsden,  2  Strobh.  Eq., 
14;  Tayman  v.  Mitchell,  1  Md.  Ch.,  49G;  Lewis  v.  McLemore,  10  Yerg.,  206; 
Thompson  v.  Lee,  31  Ala.,  292;  Oswold  v.  ]\tcGehee,  28  Miss.,  340;  Bennett  v. 
.Judson,  21  N.  Y.,  238;  Phillips  v.  Hollister,  2  Coldw.,  269:  Beebe  v.  Young, 
14  Mich.,  136;  Gunly  v.  Sluter,  44  ]\Id.,  237;  Frenzell  v.  Miller,  37  Ind.,  1; 
Elder  v.  Allison,  45  Ga.,  13. 

The  truth  may  he  so  stated  as  to  he  a  misj'epresentaiion.]     The  exact  truth  may 


MlSKEri'.KsSENTATION.  317 

have  been  carelessly  made,  or  even  in  perfect  innocence : 
and  yet  the  fact  that  the  statement  was  false  may  render  it 
unconscionable  in  the  person  who  made  the  statement  to 
enforce  the  contract  which  it  produced. 

§  628.  (1)  The  first  point  calls  for  little  remark.  It  is 
obvious  that,  to  constitute  misrepresentation,  there  must  be 
a  statement,  and  that  statement  must  be  untrue. 

§  629.  Mere  silence  is,  generally  speaking,  neither  mis- 
representation nor  fraud ;  and,  as  will  be  shown  in  the  next 
chapter,  it  is  quite  open  to  a  vendor  or  purchaser  to  main- 
tain such  silence,  though  its  effect  may  be  that  the  other 
party  acts  under  a  misapprehension. 

§  630.  The  statement  must  be  untrue  :  and  in  determin- 
ing this  question,  it  will  not  suffice  to  show  that  the  lan- 
guage used  might  admit  of  a  meaning  which  would  make  it 
correct.  (<^)  It  must,  it  is  conceived,  be  held  to  be  untrue 
wherever  it  is  found  that  the  speaker  intended  or  expected 
the  hearer  to  accept  it  in  a  sense  in  which  it  would  not  be 
true. ' 

(d)  Clarke  v.  Dickson,  (i  C.  B.  (X.  S.),  453. 

be  a  misrepresentation,  where  it  is  known  that  it  is  calculated  to  mislead  a 
party;  as,  for  example,  where  it  was  asserted  that  there  was  plenty  of  water 
upon  the  property,  which  was  in  fact  true  at  the  time,  but  the  supply  depended 
not  upon  natural  supply  but  upon  artificial  works  which  might  fail.  Kerr  on 
Fraud  and  Mis.,  1)2;  Edwards  y.  Wickwar,  L.  R.  1  Eq.,  68;  Colely  v.  Gadsden, 

15  W.  R.,  1185;  Ross  v.  E.states  Ins.  Co.,  L.  R.  3  Eq.,  135;  Chester  t.  Spayo, 

16  W.  R.,  576;  New  Brunswick  R.  R.  Co.  v.  Congbeare,  9  H.  of  Lds.,  711; 
Legge  T.  Crocker,  1  Ba.  &  Be.,  506. 

'  RuU  with  regard  io  facts  known  to  vendor.']  All  the  incidents  to  wiiich  the 
property  is  subject  must  be  laid  befora  the  purchaser  by  the  vendor,  and  it 
must  be  in  language  intelligible  to  a  common  understanding.  The  purchaser 
must  not  understand  ambiguous  terms  at  his  peril.  Conyers  v.  Ennis,  2  !Mass., 
236;  Sheard  v.  Venables,  36  L.  J.  Ch.,  922;  Drysdale  v.  Mace,  5  De  G.  M.  & 
G.,  107;  Swaislaud  v.  Dearsley,  29  Beav.,  430.  The  concealment  must  have 
been  such  as  to  have  prevented  the  other  party,  had  the  true  facts  been  known, 
from  entering  into  the  contract.  Haywood  v.  Cope,  25  Beav.,  140;  Young  v. 
Bumpass,  Freem.  (Miss.),  Ch.,  241;  Jonzin  v.  Toulmln,  'J  Ala.,  352;  Baglebole 
V.  Walters,  3  Camp.,  154;  Schneider  v.  Heath,  3  id.,  506;  Pearett  v.  Shambhut. 
5  Miss.,  323;  Steele  v.  Kinkle,  3  Ala.,  352. 

Material  facts  concealed.']  The  purchaser,  at  the  time  of  making  the  bargain, 
was  ignorant  of  a  substantial  defect  with  respect  to  the  nature  of  the  property, 
and  in  regard  to  which  he  was  not  put  upon  inquiry.  Held,  that  where  the 
defect  was  substantial,  and  referred  to  the  nature,  character,  .situation,  extent 
or  (juality  of  the  property,  specific  performance  would  not  be  decreed.  Ellicott 
v.  White,  43  Md.,  145. 

Tfie  words  "  more  or  Uss."]  The.se  words  cannot  be  a  cover  for  misrepre- 
sentation.    King  V   Knapp,  59  X.  Y.,  402. 

Part  of  in-emises  purchased  fraudulently  omitted  from  deed.]  A  portion  of  the 
estate  purchased  was  fraudulently  omitted  from'  the  deed  given,  and  the  pur. 
chaser,  being  deceived,  paid  the  price,  and  went  into  possession  under  the  deed  ^ 


318         FJiY  ON  SPECIFIC  PElIFOr.MAXCE  OF  COXTRACTS, 

§  031.  (2)  The  statement  which  is  relied  on  as  a  misrep- 
resentation must  have  been  made  by  a  party  to  the  con- 
tract or  his  agent,  and  not  by  a  stranger.  "If,"  said  Lord 
Romilly,  M.  R.,  "a  third  person,  by  representing  to  A. 
that  it  will  be  higlily  for  his  benefit,  and  by  false  repre- 
sentations induces  him  to  enter  into  a  contract  with  B.,  but 
B.  makes  no  false  representation,  and  is  neither  party  or 
privy  to  any  such,  then  the  contract  is  valid,  and  stands 
good  in  this  court.  But  the  person  who,  by  false  repre- 
sentations, induced  the  other  to  enter  into  that  contract  is 
liable,  in  an  action,  to  make  good  to  the  person  he  has  mis- 
led the  damage  he  has  sustained  by  acting  on  the  misrep- 
resentation made  to  him."(e)  Duranty's  Case  (/)  and  Ex 
parte  Worth  {g)  brings  this  principle  into  clear  relief ;  for 
in  those  cases  it  has  been  held  that  if  directors,  as  agents 
of  the  company,  issue  a  false  report,  and  third  persons,  in- 
fluenced by  this  report,  contract  with  the  company  for 
shares,  the  contract  may  be  avoided ;  but  that  if  the  same 
third  persons  contract  with  individual  shareholders  for 
shares,  the  contract  cannot  be  avoided. 

§  0:59.  It  is,  of  course,  enough  that  the  agent  was  ap- 
pointed to  bring  about  the  contract  for  the  principal,  and 
that  he  made  the  misrepresentation.  It  is  not  needful 
that  he  should  have  been  appointed  the  agent  to  make  the 
misrepresentation.  (Z^)'     Thus,  in  the  cases  in  which  con- 

(e)  In  Duranty's  Case,  26  Beav.,  270.  L.  R.  2  Ex  ,  259. 

</>  26  Beav.,  268.  (i)  Sne,  e.  g.,  Reese  River  Silver  Minins  Co. 

ig)  4  Drew.,  o29        ,.  ^   ^  .  v  Smith,  I..  R.  4  H  L.,64;  cf.  Gibson's  Case, 

(/t)  Barwick  v.  English  Joint-Stock  Bank,  2  De  G.  &  J  ,  275,  283. 


Held,  that  he  was  not  bound  to  know  that  the  description  in  the  contract  and 
the  deed,  did  not  embrace  all  the  land  orally  agreed  to  be  sold,  and  that  the 
statute  of  frauds  was  no  bar  to  an  action  for  the  specific  performance.  Beards- 
ley  V.  Duntley,  G9  K  Y.,  577;  Goodenousrh  v.  Curtis,  18  Mich,,  298;  Stewart 
V.  Beard,  23  Iowa,  477. 

Rescissioriof  Ike  contract  for  fraitduUntconcealment.']  Where  a  party,  by  fraudu- 
lent concealment,  or  willful  perversion  of  material  facts,  induces  another  to 
enter  into  a  contract,  the  latter  will  be  entitled  to  a  rescission  of  such  contract. 
Pollard  V.  Rogers,  4  Cal.,  239;  :\IcNiel  v.  Baird,  6  Munf.,  316;  Snelson  v. 
Frankhn,  6  id.,  210;  Rawdon  v.  Blatchford,  1  Sandf.'s  Ch.,  344. 

'  TJahility  of  principle  for  agent" s  misrepresentations.']  The  acts  of  an  author- 
ized agent  who,  by  fraud  and  false  representations,  affects  a  sale  of  property, 
even  in  a  case  where  the  fraudulent  acts  were  without  the  authority  or  even 
knowledge  of  the  principle  makes  such  principle  legally  accountable;  it  is  as  if 
he  had  done  the  act  himself.  New  Brunswick  R.  R.  Co.  v.  Conybeare,  9  H  of 
Lds.,  714,  726;  Barwick  v.  English  Joint-Stock  B'k,  L.  R.  2  E.x  ,  265;  Bartlett 
y  Salmon,  6  De  G.  M.  &  G.,  39;  Bristow  v.  Whitmore,  9  H.  of  Lds.,  418; 
Wheelton  v.  Hardisty,  8  E.  &  B  ,  270;  Crump  v.  United  States  Mining  Co.,  7 
Gratt.  3o2;  Hough  v.  Richardson,  8  Story,  689;  Fitzsimmons  v.  Joslin,  21  Vt., 
129;  Henderson  v.  R.  R.  Co.,  17  Tex.,  560;  contra,,  Cornfoot  v.  Fowke,  6 
M.  &  W.,  358. 


MISREPRESENT  ATIOlSr.  31  C> 

tracts  have  been  rescinded  against  companies,  tlie  repre- 
sentation have  been  made  by  the  directors,  who,  of  conrse, 
have  no  express  anthority  to  make  a  misrepresentation. (/> 

§  633.  (3)  As  to  the  state  of  mind  of  the  person  maldng 
the  statement  as  to  its  truth  or  falsehood ;  it  is  to  be  ob- 
served that  though  there  can  be  no  fraud  without  the  knowl- 
edge of  the  untruth  of  the  statement,  yet  there  may  well 
be  misrepresentation,  /.  e.,  the  representation  may  be  erro- 
neous, though  not  known  to  be  so. 

§  634.  It  would  lead  us  oyer  a  wide  field  to  consider  how 
far  knowledge  of  the  error  is  essential  in  actions  to  rescind 
a  contract,  or  in  actions  for  deceit,  or  to  support  a  defense 
on  the  ground  of  fraud  or  misrejjresentation  in  answer  ta 
an  action  on  the  contract.  (j»')  But  it  is  conceived  to  be  clear 
that,  in  equity,  a  false  statement,  though  believed  to  be 
true,  if  made  with  a  view  to  a  contract  by  a  party  to  the 
contract,  is  a  good  defense  to  an  action  for  specific  perform- 
ance. In  Wall  V.  Stubbs,(^)  Plumer,  V.  C,  observed,  "that 
whether  the  misrepresentation  be  willful  or  not  of  a  fact 
latent  or  patent,  such  misrepresentation  may  be  used  to  re- 
sist a  specific  performance,  unless  the  purchaser  really  knew 
how  the  fact  was." 

§  635.  This  point  was  particularly  considered  by  Lord 
Hatherley  (when  V.  C.)  in  Higgins  v.  Samels,(Z)  in  which 
case  the  defendant  resisted  si3ecific  performance  on  the 
ground  of  misrepresentation  by  the  plaintiff,  and  it  did  not 
appear  that  the  plaintiff  knew  the  falsity  of  the  statement 
which  he  made.  His  Lordship  concluded  that  it  was  not 
necessary  to  prove  that  the  representation  complained  of 
was  made  with  a  knowledge  that  it  was  false ;  and,  in  so 
concluding,  relied  on  Taylor  v.  Asliton(?7z.)  and  Evans  v, 
Edmonds,  {n)  The  latter  case  arose  on  a  covenant  in  a  sep- 
aration deed,  to  which  fraud  was  pleaded,  and  Maule,  J., 
said,  "I  conceive  that  if  a  man,  having  no  knowledge  what- 
ever on  the  subject,  takes  upon  himself  to  represent  a  cer- 
tain state  of  facts  to  exist,  he  does  so  at  his  peril ;  and,  if 
it  be  done  either  with  a  view  to  secure  some  benefit  to  him- 
self, or  to  deceive  a  third  person,  he  is  in  law  guilty  of  a 

(j)  See  on  this,  at  common  law,  Kennedy       {I)  2  J.  &  H.,  460,  466. 
V.  Panama,  etc..  Mail  Co.,  L.  R.  2  Q.  B.,  580.       (m)  11  M.  &  W.,  4ul. 
{k)  1  Mad.,  80.  (n)  13  C.  B.,  777. 


320        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

fj'aud,  for,  lie  takes  upon  himself  to  warrant  his  own  belief 
of  the  truth  of  that  which  he  so  asserts." (o)  Indeed,  exe- 
cuted contracts  have  been  rescinded  on  the  ground  of  their 
having  been  induced  by  false  statements  which  were  be- 
lieved to  be  true  by  the  persons  making  them.(^) 

§  636.  Questions  of  considerable  nicety  have  been  raised 
at  common  law  as  to  the  effect  of  the  misrepresentation  by 
an  agent,  where  the  principal  is  innocent  and  neither  au- 
thorized nor  knew  of  the  misstatement.  It  has  been  dis- 
cussed whether  such  misrepresentations  render  the  principal 
liable  in  an  action  for  deceit.  ($')  It  has,  in  a  celebrated 
case,  been  held,  that  where  an  agent,  without  designing  to 
deceive,  made  a  representation  which  was  false,  but  which 
he  did  not  know  to  be  so,  w^hilst  the  principal  had  the 
knowledge  of  the  actual  facts,  but  did  not  make  the  repre- 
sentation, there  was  no  evidence  to  support  a  plea  of  fraud 
or  covin,  (r)' 

§  637.  But  as  an  innocent  misrepresentation  by  a  ]3arty 
to  the  contract  is  a  bar  to  his  seeking  specific  performance 
of  it,  such  questions  do  not  seem  to  arise  in  actions  of  this 

(o)  13  C.  B.,  786.   See,  also,  Peek  v  Gurney,  (r)  Cornfoot  v.  Fowke,  6  M.  &  W.,  358;  dls- 

L.  R.  6  H.  L  ,377.  cussed  and  explained  InTlie  Xaiional  Ex- 

(p)  Rawlins  V.  Wickhara,  3  De  G.  &  J.,  304  change  Co.  v.  I>rew,  •.>   N'acq.,  103;  and  see 

(as  i-egards  the  deceased  partner);  Hart  v.  Barwick  v.  English  Joint-Stock  Bank,  L.  R. 

Swaine,  7  Ch.  p  ,  42.    Distinguish  Brett  v.  2  Ex  ,  259.    »ee,  also,  Fuller  v.  Wilson,  3  Q. 

Clowser,  5  C.  P.  D.,  376;  and  cf.  per  Lord  B.,58;  and  in  Cam.  Scac.  as  Wilson  v.  Fuller, 

Selborne  in  Brownlie  v.  Campbell,  5  App.  C,  3  id.,  68,  which  was  an  action  fer  deceit,  ulti- 

938.  maiteiy  decided  on  the  grouwd  that  the  caus« 

(q)  Udell  V.  Atherton,  7  H.  &  X.,  172;  Bar-  of  the  injury  was  the  plaintiff's  ©wn  misap- 

wick  V.  English  Joint-Stock  Bank,  L.  R.  3  pi-ehenslon;  and  ct".  per  Lord  Hatherley  in 

Ex.,  259.  Brownlie  v.  Campbell,  5  App.  C,  941. 

>  Young  V.  Covell,  8  Jolin.'s  R.,  23,  is  a  case  precisely  in  point.  It  was  there 
said  by  the  court  that  an  action  of  tliis  nature  ' '  cannot  be  maintained  withotft 
proving  actual  fraud  in  the  defendant,  or  an  intention  to  deceive  the  plaintiff 
by  false  representation.  The  simple  fact  of  misrepresentation,  unconnected 
with  fraudulent  design,  is  not  sufficient.  The  evidence  produced  by  the  plain- 
tiffs at  the  trial  did  not  make  out  the  fraud,  or  show  enough  to  justify  the  jury 
in  drawing  the  conclusion.  The  defendant  made  no  representation  of  faots 
within  his  knowledge.  He  stated  correctly  the  circumstances  of  the  connec- 
tions of  Davis  in  Rhode  Island.  He  lived  on  friendly  terms  with  the  plaintiffs; 
he  gave  them  prompt  and  reasonable  notice  of  his  subsequent  opinion  of  the 
insolvency  of  Davis;  and  it  did  not  appear  that  he  had  any  connection  with 
Davis,  or  that  he  came  and  voluntarily  recommended  him  to  the  plaintiffs. 
The  advice  was  rash  and  indiscreet ;  but  there  is  no  ground  from  which  to  infer 
that  it  was  deceitful.  Deceit  is  the  gist  of  the  action.  If  the  case  had  gone  to 
the  jury,  the  testimony  would  not  have  warranted  a  verdict  for  the  plaintiifs, 
and  tlie  motion  to  set  aside  the  nonsuit  ought,  therefore,  to  be  denied."  In  the 
older  case  of  Ward  v.  Center,  3  .John.,  271,  this  point  was  treated  as  unsettled, 
though  the  court  seems  to  have  inclined  to  the  view  taken  afterwards  in  Young 
V.  Covell.  Of  course,  where  there  exists  the  deceit  or  fraudulent  design,  said 
to  be  the  gist  of  the  action,  the  complaint  is  well  laid.  Gallagher  v.  Mason,  6 
Cow.,  346;  Benton  v.  Pratt,  2  Wend.,  385;  Upton  v.  Vail,  6  John.,  181. 


MISREPRESElSrTATION,  321 

nature  ;  for  it  seems  clear  that  any  misrepresentation  of  an 
agent  leading  up  to  the  contract,  though  both  principal  and 
agent  were  innocent,  would  debar  the  principal  from  specific 
performance/ 

§  638.  It  may  probably  be  laid  down  as  a  general  prin- 
ciple in  equity,  that  a  man  is  bound  who  makes  a  repre- 
sentation which  is  not  true,  though  without  knowledge  of 
its  untruth,  and  this  even  though  the  mistake  be  innocent ; 
for  a  man,  before  making  a  representation,  ought  not  only 
not  to  know  it  to  be  untrue,  he  ought  to  know  that  it  is 
true.(6f)  So,  in  a  case  where  a  trustee  was  charged  by  the 
court  in  respect  of  a  misrepresentation  made  to  a  purchaser, 
and  the  trustee  alleged  that  he  did  not,  at  the  time,  recollect 
the  fact  thus  misrepresented.  Grant,  M.  R.,  said,  "the  plain- 
tiff cannot  dive  into  the  secret  recesses  of  his  (the  trustee's) 
heart,  so  as  to  know  whether  he  did  or  did  not  recollect  the 
fact,  and  it  is  no  excuse  to  say  that  he  did  not  recollect 
it."(^)'  In  like  manner,  it  may  be  added  that,  in  the  cases 
of  agents  rendering  themselves  personally  liable,  it  is  the 

(»)  Ainslie  v.  Medlycott,  9  Ves.,  13,  21.  G..  339 ;  and  see  per  Lord  Selborne  in  Brown- 

(t)  In  Burrowes  v.  l>ock,  10  Ves.,  476;  ac-    lie  v.  Campbell,  5  App.  C,  93o,  936. 
•ordingly  Price  v.  Macaulay,  2  De  G.  M.  * 


1  Rule  with  respect  to  good  faith.}  "It  is  equally  promotive  of  good  morals, 
fair  dealing  and  public  justice  and  policy,  that  a  vendor  shou-ld  distinctly 
comprehend  not  only  that  good  faith  should  reign  over  all  his  conduct  in  re- 
lation to  the  sale,  but  that  there  should  be  the  most  scrupulous  good  faith, 
an  exalted  honesty,  or,  as  it  is  often  felicitously  expressed,  nbernma  fides,  in 
every  representation  made  by  him  as  an  inducement  to  the  sale.  He  should 
literally,  in  his  representation,  tell  the  truth,  the  whole  truth,  and  nothing  but 
the  truth.  If  his  representation  is  false  in  any  one  subst^antial  circumstance 
going  to  the  inducement  or  essence  of  the  bargain,  and  the  vendee  is  thereby 
misled  the  sale  is  voidable,  and  it  is  wholly  immaterial  whether  the  representa- 
tion be  willfully  or  designedly  false,  or  ignorantly  or  negligently  untrue  The 
vendor  acts  at  his  peril,  and  is  bound  by  every  syllable  he  utters  or  proclaims, 
or  knowingly  impresses  upon  the  vendee,  as  a  lure  or  decisive  motive  for  the 
bargain."  Story,  J.,  in^Doggett  v.  Emerson,  3  Story,  733;  Hough  v.  Richard- 
son, id.,  659. 

Misrepresentation  made  in  good  faith.  ]  A  party  misrepresented  the  law  to  his 
sister-in-law  and  she,  believing  her  title  to  property  held  by  her  not  to  be  good, 
sold  it  to  him,  the  sale  being  greatly  to  his  advantage.  Held,  that  such  sale 
would  be  annulled,  even  where  the  misrepresentations  were  made  in  good  faith, 
and  in  a  mistaken  idea  of  the  law.     Sims  v.  Farrill,  45  Ga.,  585. 

2  A  mortf^ao-e  obtained  by  the  misrepresentations  of  the  mortgagee  is  void: 
and  it  is  ifnmaterial  as  to  its  legal  effect  upon  the  instrument,  whether  the 
mortga<^ee  at  the  time  he  made  the  representation,  knew  it  to  be  false.  It  he 
made  a"  statement  of  facts,  knowing  it  to  be  false,  it  would  clearly  be  a  legal 
fraud-  but  although  he  did  not  know  it  to  be  false,  yet  it  he  undertook  to  state 
it  as  true  without  a  knowledge  of  its  truth  or  falsehood,  and  it  operated  as  a 
deception  on  the  party  to  whom  it  was  made,  and  thereby  induce  the  mortgage, 
it  would  avoid  it.     The  gist  of  the  inquiry  is  not  whether  the  party  making  the 

21 


322        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

same  whether  they  represent  what  they  know  to  be  false, 
or  what  they  do  not  know  to  be  triie.('w)' 

§  639.  (4)  The  misrepresentation  must  have  been  made 
in  relation  to  the  contract  in  question,  and  with  a  view  to 
induce  the  other  to  enter  into  it ;  it  must  have  been  dolus 
clans  locum  contractuL  {v)  Hence,  unless  under  very  special 
circumstances,  it  must  have  been  made  at  the  time  of  the 
treaty, (lo)  and  not  have  relation  to  some  collateral  matter, 
or  other  relation  or  dealing  between  the  parties,  (a?)' 

(u)  Per  Alderson,  B.,  in  Smout  v.  Ilbery,  a  published  prospectus  can  be  presumed  in 

10  M   &  W    10  the  absence  of  specific  evidence  to  have  been 

(V)  t^ee  per  Lord  Brougham  in  Attwood  v.  the  basis  of  an  insurance  effected  with  tiiem, 

Small.  6  CI.  &  Fin.,  Ui;  per  Lord  Wensley-  see  Wheelton  v.  Hardisty,  8  El.  &  BK,  2u2. 

dale  in  Smith  v.  Kay.  7  H.  L.  C.  775.  (x)  Harris  v.  Kemble.  1  Sim.,  Ill,  128.  over- 

(w)  Per  Leach,  V.  C.  In  Harris  v.  Kemble,  ruled,  but  as  to  the  apj)lication  and  not  as  to 

1  Sim.,  122     As  to  the  question  whether  a  the  principle,  5  Bli.  (N.  S  ).  730.    See.  also, 

representation  by  an  insurance  company  In  Dawes  v.  King,  1  ^itark.,  75. 


Statement  knew  it  to  be  false,  but  whether  the  statement  made  as  true  was  be- 
lieved and,  therefore,  if  false,  deceived  the  party  to  whom  it  was  made.  Jones 
V.  Taylor,  6  Gill  &  John.,  54.  In  Donelson  v.  Youngs,  Meigs,  155,  where  a 
machinist  sold  a  machine  made  by  himself,  which  was  wholly  worthless,  repre- 
senting it  to  be  a  good  one,  it  was  held  to  be  a  fraud,  although  the  vendor  was, 
throush  want  of  skill  in  his  business,  ignorant  that  the  machme  was  not  a  good 
one.  "But  it  is  said  that  a  misrepresentation  of  the  solidity  of  a  mercantile 
house,  made  under  a  mistake  of  fact,  without  any  interest  or  fraudulent  inten- 
tion, will  not  sustain  an  action,  although  the  plaintiff  may  have  suffered  damage 
by  reason  of  such  misrepresentation.     Russell  v.  Clark  7  Cranch,  69. 

'  A  person  who  falsely  states  a  matter  within  his  knowledge,  is  not  excused 
by  averring  a  want  of  recollection  at  the  time  of  the  statement.  Kent,  Ch., 
Bacon  v.  Bronson,  7  John.'s  Ch.,  164. 

2  Willard's  Eq.  Jur.,  ch.  3,  p.  149;  Story's  Eq.  Jur.,  §  195.  The  case  of 
Taylor  v.  Fleet,  1  Barb.  Sup.  Ct.  R.,  471,  is  an  authority  of  value  on  this  point. 
A  person  about  to  purchase  a  farm  was  ignorant  of  the  actual  character  and 
capabilities  of  the  land,  and  had  no  means  of  obtaining  such  knowledge,  except 
by  information  derived  from  others;  and  the  owner,  with  a  knowledge  that  the 
purchaser's  object  was  to  obtain  an  early  farm,  and  that  his  farm  was  not  so 
early  as  others  lying  in  the  neighborhood,  represented  to  such  purchaser  "that 
there  was  no  earlier  land  anywhere  about  there,"  and  the  latter  relying  upon 
the  truth  of  such  representation,  made  the  purchase;  and  after  ascertaining,  by- 
actual  experiment,  that  the  land  was  not  what  it  had  been  represented  to  be,  he 
applied  to  the  vendor,  within  a  reasonable  time,  to  rescind  the  bargain,  who 
refused  to  do  so.  Held,  that  this  furnished  a  sufficient  ground  for  the  interfer- 
ence of  a  court  of  equity  to  rescind  the  contract,  even  though  there  was  no 
intention  on  the  part  of  the  vendor  to  deceive  the  purchaser.  In  delivering  the 
opinion  of  the  court,  Harris,  J. ,  said  that  a  misrepresentation  of  a  material^  fact, 
constituting  the  basis  of  the  sale,  and  relied  upon  by  the  purchaser,  is  sufficient 
to  warrant  the  interference  of  the  court.  In  Camp  v.  Pulver,  5  Barb.,  91,  the 
importance  of  the  materiality  of  the  misrepresentation  is  dwelt  upon  by  the 
court.     Harris,  P.  J.     See  Halls  v.  Thompson,  1  S.  &  M.,  443. 

Misrepresentation  without  a  design  is  not  sufficient  for  an  action,  but  if  recom- 
mendation of  a  purchaser  as  of  good  credit,  to  the  seller,  be  made  in  bad  faith, 
and  with  knowledge,  that  he  was  not  of  good  credit,  and  the  seller  sustain 
damage  thereby,  the  person  who  made  the  representation  is  bound  to  indemnify 
the  seller.  2  Kent's  Com.,  490.  This  rule  places  the  liability  of  the  defend- 
ant upon  the  true  ground,  exonerating  him  where  he  may  act  in  good  faith  and 
still  err  in  his  judgment,  and  rendering  him  responsible  where  he  knowingly 


MISREPRESENTATION.  323 

§  640.  This  point  was  much  discussed  in  a  Scotch  case  in 
the  House  of  Lords.  There,  a  tottering  joint-stock  company 
had  put  out  flourishing  annual  reports  of  its  condition,  and 
shortly  after  the  last  of  these  reports,  and  with  a  view  to  pre- 
vent its  shares  falling  in  the  market  and  to  counteract  certain 
unfavorable  rumors,  the  company,  through  their  manager, 
urged  the  defenders  to  purchase  additional  shares  in  the 
concern,  and  assured  them  that  the  comijany  would  advance 
the  necessary  funds,  and  that  the  stock  should  be  held  until 
it  could  be  sold  at  a  profit,  without  the  defenders  being 
called  on  to  pay  any  money :  the  shares  became  valueless, 
and  the  company  sued  for  the  money  advanced,  to  which 
the  defenders  pleaded  the  fraud  of  the  comi)any:  to  this 
plea  it  was,  amongst  other  things,  objected  that  the  loan 
was  one  independent  transaction,  and  the  purchase  another, 
and  that  the  alleged  misrepresentation  in  the  purchase  did  not 
vitiate  the  loan.  But  it  was  held  by  their  lordships  that  the 
defense  was  good,  Lord  Cranworth  putting  it  on  the  ground 
that  the  transaction  did  not  constitute  a  loan  in  the  ordinary 
sense  of  the  word,  but  a  special  contract  by  the  company  to 
purchase  for  the  defenders,  to  be  repaid  only  in  a  particular 
manner  ;  and  Lord  St.  Leonards  holding  that  the  purchase 
and  the  loan  were  one  transaction,  though  consisting  of  two 
parts — that  if  there  had  been  no  loan  there  would  have  been 
no  purchase,  and  if  there  had  been  no  purchase  there  would 
have  been  no  loan.(?/) 

§  641.  On  the  other  hand,  it  has  been  held  by  the  House 
of  Lords  that  a  purchaser  of  shares  in  the  market,  upon  the 
faith  of  a  prospectus  which  he  has  not  received  from  its  au- 
thors, cannot  so  connect  himself  with  them  as  to  render 
them  liable  for  the  misrepresentation  contained  in  it.(r)    In 

(y)  The  National  Exchange  Co.  v.  Drew,  2  too,  Barry  v.  Croskey,  2  J.  &  U.,  1 ;  and  con- 
Macq.,  1(8.  sider  Barrett's  Case,  3  De  G.  J.  &  S.,  30. 

(z)  Peek  V.  Gurney,  L.  R.  6  H.  L.  377.    See, 

misinforms  the  applicant  for  the  purpose  of  deceiving  him."    Daniels,  J.,  in 
Marsh  v.  Falker,  40  N.  Y.,  567. 

Statements  claimed  to  be  false,  must  have  been  acted  upon.]  In  order  that  equity 
may  interfere,  the  misrepresentation  complained  of  must  have  induced  the  party 
to  contract  to  his  damage.  The  injured  party  must  have  had  a  right  to  rely 
upon  the  statements  made.     Graffenstein  v.  Epstein,  23  Kan.,  443. 

Waiver  of  misrepresentations.]  Where  a  party  enters  into  new  stipulations, 
he  waives  a  former  misrepresentation  thereby.  Thureatt  v.  McLeod,  56  Ala., 
375. 


324        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

earlier  cases  it  liad  been  held,  that  a  report  published  by  the 
directors  of  a  company  as  addressed  to  its  shareholders,  but 
intended  to  come  and  coming  into  the  hands  of  any  person 
who  might  wish  to  purchase  shares,  was  a  representation 
made  by  the  directors  to  any  person  who  might  obtain  the 
report  and  on  the  faith  of  it  buy  shares  ;(a)  and  that  false 
representations  made  by  the  directors  of  a  company  to  the 
secretary  of  the  stock  exchange  to  obtain  an  official  quo-, 
tation  justified  a  person  who,  knowing  the  rules  of  the 
exchange,  had  bought  on  the  faith  of  the  quotation  so  ob- 
tained, in  suing  the  directors  in  damages  :{b)  but  in  Peek 
V.  Gurney,(c)  Lord  Chelmsford,  while  not  doubting  the  pro- 
priety of  the  former  of  these  two  cases,  expressed  strong 
dissent  from  the  latter. 

It  need  hardly  be  said  that  if,  in  any  case  where  an  action 
for  deceit  would  lie,  the  result  of  the  misrepresentations  had 
been  a  contract  between  a  director  and  one  of  the  public, 
and  the  director  had  sued  the  purchaser  in  specific  perform- 
ance, the  purchaser  would  have  had  a  clear  defense. 

§  64S.  Where  directors  as  agents  of  the  company  pre- 
pared false  reports  and  a  circular  addressed  to  the  share- 
holders and  customers  of  the  bank,  and  intended  for  fhem, 
and  one  of  the  directors  took  these  papers  to  a  person  who 
was  neither  a  shareholder  nor  a  customer,  and  thereby 
induced  him  to  become  a  shareholder,  it  was  held  that  the 
company  were  not  bound,  on  the  two  grounds,  (1)  that  the 
authority  was  given  to  the  directors  as  a  body  and  not  to 
each  ane  individually,  and  (2)  that  the  paper  was  prepared 
for  one  purpose  and  applied  by  an  individual  director  for 
another,  {d) 

§  643.  (5)  Another  circumstance  essential  to  misrepre- 
sentation as  a  defense  to  specific  performance  is,  that  it  was 
in  reliance  upon  the  statements  in  question  that  the  party 
to  whom  they  were  made  entered  into  the  contract.  In 
Attwood  V.  Small,  (e)  which  was  a  case  for  the  rescission  of 
the  contract  (and  for  this  point  the  plaintiff's  case  for  rescis- 
sion and  the  defendant's  case  against  specific  performance 
seem  alike).  Lord  Brougham,  after  referring  to  the  earlier 

(a)  Scott  V.  Dixon,  29  L.  J.  Ex.,  62  n.  (c)  L.  E.  6  H.  L.,  397,  398. 

(6)  Bedford  v.  Bagshaw,  4  H.  &  N.,  538.  (d)  Nicol's  Case,  3  De  G.  &  J.,  387.    Con- 
See,  also,  Clarke  v.  Dickson,  6  C.  B.  (N.  S.),  sider  Barrett's  Case,  3  De  G.  J.  &  S.,  30. 
453  (e)  6  CI.  &  Fin.,  447. 


MISREPHESEXTATIOX.  1325 

cases,  said,  "Now,  my  lords,  what  inference  do  I  draw  from 
these  cases ''(  It  is  this,  that  general  fraudulent  conduct 
signifies  nothing ;  that  general  dishonesty  of  purpose  signi- 
fies nothing ;  that  attempts  to  overreach  go  for  nothing ; 
that  an  intention  and  design  to  deceive  may  go  for  notliing, 
unless  all  tliis  dishonesty  of  purpose,  all  this  fraud,  all  this 
intention  and  design,  can  be  connected  with  the  particular 
transaction,  and  not  only  connected  with  the  i)articular 
transaction,  but  must  be  made  to  be  the  very  ground  upon 
which  this  transaction  took  place,  and  must  have  given  rise 
to  this  contract." 

^  644.  It  is  not,  of  course,  necessary  that  the  statements 
which  were  false  should  have  been  the  sole  inducements  to 
the  contract.  The  presence  of  true  statements  will  not 
remove  or  cancel  the  effect  of  false  ones.  (./')' 

§  645.  In  considering  whether  the  defendant  relied  on 
the  misreiDresentation  of  the  plaintiff,  the  court  will  dis- 
criminate between  such  representations  as  are  in  conscience 
a  part  of  the  bargain,  whether  incorporated  into  the  legal 
contract  or  not,  and  mere  vague  commendations,  as  the 
holding  out  of  mere  hopes  or  expectations  which  ought  to 
put  the  other  party  upon  further  inquiry  ;  and  in  judging 
of  this,~  it  is  important  to  consider  whether  the  thing  stated 
may  lie  in  the  knowledge  of  the  party  making  the  represen- 
tation, or  whether  it  must  lie  beyond  his  knowledge.  Thus, 
for  instance,  with  regard  to  mines,  a  distinction  will  be 
drawn  between  a  specific  account  of  what  was  to  be  seen  in 
the  mine,  and  a  general  description  of  its  prospects  and 

(/)  Clarke  v.  Dickson,  6  C.  B.  (N.  S.),  453;  Nicors  Case,  3  De  G.  A  J..  3S7. 


1  Allen  V  Addington,  7  Wend.,  9;  Young  v.  Hall.  4  Geor.,  9").  If  a  party 
makes  false  affirmation,  although  he  has  no  interest  of  his  own  to  serve,  whereby 
another  sustains  damage,  he  is  liable  to  an  action.  Beam  v.  Ilornek,  3  1-iiirf., 
262;  see  Stiles  v.  White,  11  Mete.,  35G. 

Mule  as  P>  statements  false  in  fact]  "To  maintain  an  action  for  fraud  and 
deceit,  based  upon  false  representations,  the  representations  must  not  only  l)e 
false,  in  fact,  but  the  party  making  them  must  believe,  or  have  reason  to  be- 
lieve, them  to  be  false,  and' such  false  representations  must  mtluenci;^thi-  other 
party  to  contract."  Grover,  J.,  in  Oberlander  v.  Spiers.  4..  >.  \  ..  1  -o;  .Meyer 
v.  Amidon  id..  169:  :Marsh  v.  Falker.  40  id  .  r,(i6:  Smith  v.  Coo,  29  id.  <)00; 
Bennett  v.  Judson,  21  id..  23S;  Carman  v.  Pultz.  id..  547:  see.  iilso,  luirlev  v. 
Garrett.  9  B.  &  C,  92S;  Freeman  v.  Baker.  5  B.  ct  AhL,  <'•••:  Thorn  v.  Big- 
land  8  E.xch  ,  726;  Bartlett  v.  Solomon,  G  De  G.  >I.  A:  G  ,  33;  Moc-us  v.  Hey- 
worth,  10  M.  &  W..  147;  Collins  v.  Evens.  5  Q.  B..  820;  lUycraft  v.  Crea.sy. 
2  East  92-  O.swood  v.  Huth.  14  M.  &  W.,  651:  Burrows  v.  Lock.  10^e8.. 
470-  Brooks  y.  Hamilton,  15  Minn.,  26:  Stitt  v.  Little,  03  N.  ^  .,  427. 


326        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

capabilities,  wliicli  from  the  very  nature  of  the  property 
must  be  problematical  and  doubtful.  (^)  So,  again,  the  mis- 
representations relied  on  must  be  statements  of  alleged  facts 
and  not  mere  expressions  of  opinion.' 

§  616.  Accordingly,  where  an  advowson  was  sold  by  auc- 
tion, and  the  particulars  stated  that  a  voidance  of  the  pre- 
femient  was  likely  to  occur  soon,  but  made  no  mention  of 
the  present  incumbent,  and  the  auctioneer  at  the  sale  stated 
in  explanation  that  the  living  would  be  void  on  the  death 
of  a  person  aged  eighty-two  ;  and  in  fact  the  then  incumbent 
was  only  thirty-two  years  of  age:  Grant,  M.  R,,  held  the 

(g)  Jennings  v.  Broughton,  17  Beav.,  234;  5  De  G  M.  &  G.,  126;  cf.  Jefferys  v.  Fairs,  4 
Ch.  D.,  448. 

'  Where  the  false  statements  presumably  produced  no  effect.'}  "  If  the  party  to 
whom  the  representations  were  made,  himself  resorted  to  the  proper  means  of 
verification  before  lie  entered  into  the  contract,  it  may  appear  that  he  relied 
upon  the  result  of  his  own  investigation  and  inquiry,  and  not  upon  the  repre- 
sentations made  to  him  by  the  other  party.  Or  if  the  means  of  investigation 
and  verification  be  at  hand,  and  the  attention  of  the  party  receiving  the  repre- 
sentations be  drawn  to  them,  the  circumstances  of  the  case  may  be  such  as  to 
make  it  incumbent  on  a  court  of  justice  to  impute  to  him  a  knowledge  of  the 
results,  which,  upon  due  inquiry,  he  ought  to  have  obtained,  and  thus  the 
motion  of  reliance  on  the  representations  made  to  him  be  excluded.  Again, 
when  we  are  endeavoring  to  ascertain  what  reliance  was  placed  on  representa- 
tions, we  must  consider  them  with  reference  to  the  subject  matter  and  relative 
knowledge  of  the  parties.  If  the  subject  is  capable  of  being  accuratelj'  known, 
and  one  party  is,  or  is  supposed  to  be,  possessed  of  accurate  knowledge,  and 
the  other  is  utterly  ignorant,  and  a  contract  is  entered  into  after  representations 
made  by  the  party  who  knows,  or  is  supposed  to  know,  without  any  means  of 
verification  being  resorted  to  by  the  other,  it  may  well  enough  be  presumed 
that  the  ignorant  man  relied  on  the  statements  made  to  him  by  him  who  was 
supposedto  be  better  informed.  But  if  the  subject  is  in  its  nature  uncertain, 
if  all  that  is  known  about  it  is  matter  of  inference  from  something  else,  and  if 
the  parties  making  and  receiving  representations  on  the  subject  have  equal 
knowledge  and  means  of  acquiring  information  and  equal  skill,  it  is  not  easy 
to  presume  that  representations  made  by  one  would  have  much,  or  any.  influ- 
ence on  the  other."  Lord  Langdale,  in  Chapham  v.  Shillito,  7  Beav.,  146;  see, 
also,  Pike  v.  Vigcrs,  2  D.  i;  W.,  201;  Vesey  v.  Doto,  3  Allen,  380;  Clarke  v. 
Macintosh,  4  GiS.,  134;  Hough  v  Piichardson,  3  Story,  G59;  Small  v.  Atwood, 
6  CI.  &  Fin.,  232.  Their  inspection,  if  the  purchaser  does  not  avail  himself  of 
those  means  and  opportunities,  he  will  not  be  heard  to  say  in  impeachment  of 
the  contract  of  sale,  that  he  was  drawn  into  it  by  the  vendor's  misrepresenta- 
tions." This  is  the  rule  as  laid  down  by  the  United  States  Supreme  Court  in 
Slaughter's  Admin,  v.  Gerson,  13  Wall.,  383;  see,  also,  Davis  v.  Sims,  Hill  & 
Denio,  234;  Sun  Ins.  Co.  v.  Adam,  23  Pick.,  2rj6;  Mooney  v.  Miller,  102  iSIass., 
220;  Long  v.  Warren,  68  N  Y.,  420;  Tallman  v.  Green,  3  Sandf.,  437;  Smith 
V.  Countryman,  30  N.  Y.,  C81 ;  Grant  v.  Munt,  Cooper,  173;  Barnett  v.  Stan- 
ton, 2  Ala.,  181:  Buck  v.  McCaughtrey,  5  Monr.,  216;  Eeadiug  v.  Price, 3. I.  J. 
Marsh.,  fil ;  McKinny  v.  Fort,  10  Tex.,  220;  Barron  v.  Alexander,  27  Mo.,  530; 
Cauldwell  v.  McCelland,  3  Sneed,  loO 

Representations  as  to  property  at  a  didance.'X  Where  property  is  sold  which 
the  purchaser  has  never  seen,  and  is  obliged  to  depend  upon  the  statements  of 
the  vendor  respecting  it,  such  vendor  is  bound  to  stand  his  representation.  Re 
Reese  River  Silver  Mining  Co.,  L.  R.,  2  Ch.,  614;  Spalding  v.  Hedges,  2  Pa.  St , 
240;  Smith  v.  Richards,  13  Pet.,  26;  Camp  v.  Camp,  2  Ala.,  632;  Babcock  v. 
Case,  61  Pa.  St.,  427;  Miner  v.  Medburv,  6  Wis.,  29.j. 


MIS  REPRESENT  ATIOX.  327 

representation  made  by  the  particulars  so  vague  and  indefi- 
nite that  its  only  effect  ought  to  have  been  to  put  the  de- 
fendant upon  making  inquiries,  and  accordingly  granted 
specific  performance.  (7z)  And  so,  again,  the  representation 
that  land  was  uncommonly  rich  water-meadow,  whereas,  in 
fact,  it  was  very  imperfectly  watered,  was  held  not  to  be  a 
bar  to  performance :(/)'  and  the  like  was  held  as  regards  a 
statement  to  the  effect  that  the  land  in  course  of  time  might 
be  covered  with  warp  and  considerably  improved  at  a  mod- 
erate cost. (J) 

§  647.  But,  generally  speaking,  in  statements  made  by 
the  vendor  as  to  property,  he  is  bound  to  make  them  free 
from  all  ambiguity,  and  "the  purchaser  is  not  bound  to 
take  upon  himself  the  peril  of  ascertaining  the  true  mean- 
ing of  the  statement  ;"(^')  ^^^  ^^  ^U  cases  of  commendation 
by  the  vendor,  a  specific  statement  as  to  the  character  of  the 
thing  sold  is  to  be  distinguished  from  general  laudation. 
The  statement  that  a  lime  which  would  be  produced  by 
stone  to  be  got  in  an  unopened  field  would  be  of  a  particular 
quality,  was  held  sufficiently  precise  to  furnish  a  defense.  (/)' 

§  648.  Besides  the  vagueness  of  the  representation,  there 
are  other  grounds  upon  which  the  court  will  conclude  that 
it  was  not  relied  upon  by  the  party  to  whom  it  was  made  : 
these  were  discussed  by  Lord  Langdale,  M.  R.,  in  the  case 

(ft)  Trower  v.  Xewcome,  3  Jler.,  704.  Cotter.  3  Jon    &  L..  507;  ^'all  v.  ^tubbs,  1 

(0  Scott  T.  Hanson,  1  Sim  ,  13;  S.  C,  1  R.    Ma<1..  80      See.  too.  Moxey  v.  B5pwood.  4  De 

&  Mv  .  1-2S     See,  also,  on  this  point  Fenton    G.  F.  &  J.,  3ol;  Caballero  v.  Henty,  L.  R.  9 


Browne.  14  Ves.,  144;  Brealey  T.  Collins.    €h.,447.  ,     .-,  t   *  n    aai     <;«. 

u.,  317;  Brooke  v.  Roundlhwaite,  5  Ha.,        <h  Hisrsins  v.  Samels.  2  J.  &  H.,  460.    See. 

vi)  Dlmmock  v.  Hallett.  L.  R.  2  Ch.,  21. 
{k)  Per  Lord  St.   Leonards  in  Martin  v. 


1  It  is  undoubtedly  true  tbat  to  avoid  a  contract  on  the  ground  of  misrep- 
resentation, tliere  must  not  only  be  a  misrepresentation  of  a  material  fact  con- 
stituting- the  basis  of  the  sale,  but  the  purchase  must  have  been  made  upon  the 
faith  and  credit  of  such  representations.  At  least,  the  purchaser  must  so  far 
have  relied  on  them  as  that  he  would  not  have  made  the  purchase  if  the  rep- 
resentations had  not  been  made."  Taylor  v.  Flett.  1  Barb.  bup.  tt.  Rep  4<5. 
Althou<^h  other  inducements  besides  the  representations  may  have  operated  in 
the  o-ivmff  credit,  it  is  enough  if  the  vendor  is  »i<^m?  bv  such  representations, 
so  that  Without  it  the  goods  Would  not  have  been  parted  with.  Addiugton  v. 
Allen,  11  Wend.,  375.  . 

•^  There  is  also  a  distinction  taken  at  law,  between  the  mere  expression  of  ^^ 
oniniou  and  the  statement  of  a  fact.  Pars.  Contr.,  vol.  2.  pt.  2,  ch.  S,  p.  -<5. 
and  no^e  r/;.  But  t  is  added,  by  the  same  author,  that  this  distinction  must 
no? be  carried  too  far;  and  that  if  the  opinion  was  one  on  which  the  other 
mrty  was  iustified  in  reiving,  either  by  the  relations  existing  between  the  par- 
ses oi  by  he  nature  of  the  ?ase,  and  it  can  be  made  to  appear  hat  the  opinion 
expressed  was  not  in  fact  held,  that  this  should  be  deemed  equivalent  to  a  mis- 
representation  of  facts. 


328        FRY  ox  SPECIFIC  PEKFOEMANCE  OF  CONTRACTS. 

of  Clapham  v.  Sliilton.(m)  His  lordship  there  said  :  "  Cases 
have  frequently  occurred  in  which  upon  entering  into  con- 
tracts misrepresentations  made  by  one  party  have  not  been, 
in  any  degree,  relied  on  by  the  other  party.  If  the  party 
to  whom  the  representations  were  made  himself  resorted  to 
the  proper  meaiis  of  verification,  before  he  entered  into  the 
contract,  it  may  appear  that  he  relied  ujoon  the  result  of  his 
own  investigation  and  inquiry,  ^d  not  upon  the  represen- 
tations made  to  him  by  the  other  party  :  or  if  the  means  of 
investigation  and  verification  be  at  hand,  and  the  attention 
of  the  party  receiving  the  representations  be  drawn  to  them, 
the  circumstances  of  the  case  may  be  such  as  to  make  it  in- 
cumbent on  a  court  of  justice  to  impute  to  him  a  knowledge 
of  the  result,  wiiich,  ujDon  due  inquiry,  he  ought  to  have 
obtained,  and  thus  the  notion  of  reliance  on  the  representa- 
tions made  to  him  may  be  excluded.  Again,  Avhen  we  are 
endeavoring  to  ascertain  what  reliance  was  i)laced  on  repre- 
sentations, we  must  consider  them  with  reference  to  the 
subject  matter  and  the  relative  knowledge  of  the  parties. 
If  the  subject  is  capable  of  being  accurately  known,  and  one 
party  is,  or  is  supposed  to  be,  possessed  of  accurate  knowl- 
edge, and  the  other  is  entirely  ignorant,  and  a  contract  is 
entered  into  after  representations  made  by  the  party  who 
knows,  or  is  supposed  to  know,  without  any  means  of  veri- 
fication being  resorted  to  by  the  other,  it  may  well  enough 
be  presumed  that  the  ignorant  man  relied  on  the  statements 
made  to  him  by  him  who  was  supposed  to  be  better  in- 
formed :  but  if  the  subject  is  in  its  nature  uncertain — if  all 
that  is  known  about  it  is  matter  of  inference  from  something- 
else,  and  if  the  parties  making  and  receiving  representations 
on  the  subject  have  equal  knowledge  and  means  of  acquir- 
ing knowledge,  and  equal  skill,  it  is  not  easy  to  presume 
that  representations  made  by  one  would  have  much  or  any 
influence  upon  the  other." ('?^) 

§  649.  It  must  not  from  this  be  inferred  that  the  mere 
presence  of  the  means  of  detecting  the  misstatement  pre- 
vents the  deceived  person  from  relying  on  it.(c»)  If  a  state- 
ment be  made  by  A.  to  B.  and  the  means  of  verification  be 
offered,  B.  may  rely  on  the  statement  and  refuse  the  investi- 

(m)  7  Beav.,  146.  Kisch,  L.  R.  2  H.  L.,  99;  affirming  S.  C,  3  De 

(n)  7  Beav.,  149,  150.  G.  J.  &  S.,  122. 

(0)  Central  Railway  Co.  of  Venezuela  v. 


MISKEPKESENTATION.  829 

gation :  but  if  lie  accept  tlie  investigation  and  find  or  might 
have  found  the  statement  false,  he  cannot  afterwards  allege 
that  he  relied  on  the  statement :  for  in  fact  he  did  not. 

§  650.  He  who,  because  he  does  not  rely  on  what  is  stated 
to  him,  resorts  to  other  means  of  knowledge,  cannot  after- 
wards say  that  the  misrepresentation  was  what  he  relied  on. 
"If,"  said  Lord  Holt,  C.  J.,  alluding  to  the  circumstances 
of  the  case  before  him,  "the  vendor  gives  in  his  particular  of 
the  rents,  and  the  vendee  says  he  will  trust  him  and  inquire 
no  further,  but  rely  upon  his  particular ;  then,  if  the  par- 
ticular be  false,  an  action  will  lie  ;  but  if  the  vendee  will  go 
and  inquire  further  what  the  rents  are,  there  it  seems  un- 
reasonable he  should  have  any  action,  though  the  particular 
be  false,  because  he  did  not  rely  upon  the  particular.' '(7>») 
It  was  on  this  ground  that  the  House  of  Lords  ultimately 
decided  the  celebrated  case  of  Attwood  v.  Small. (^)  The 
Britisli,  Iron  Company  had  sent  a  deputation  of  their  direc- 
tors down  to  Mr.  Attwood' s  works  for  the  express  purpose 
of  verifying  his  representations,  and  they  expressed  their 
satisfaction  with  the  proofs  produced :  by  this  line  of  con- 
duct they  precluded  themselves  from  being  able  to  rely  on 
any  previous  misrepresentations :  for  if  a  purchaser  chooses 
to  judge  for  himself,  and  does  not  avail  himself  of  all  the 
knowledge  and  means  of  knowledge  open  to  him,  he  Avill  not 
afterwards  be  allowed  to  say  that  he  was  deceived  by  the 
representations  of  the  vendor.  This  decision  was  given^  in 
a  suit  for  rescission,  and  not  upon  a  defense  to  a  specific 
performance ;  but  for  the  present  point  these  seem  to  l)e 

alike,  (r) 

§  651.  The  principle  is  further  illustrated  by  the  case  of 
Jennings  v.  Broughton,(5)  where  the  plaintiff,  having  bought 
shares  in  a  mine,  afterwards  sought  to  set  aside  the  sale  on 
the  ground  of  misrepresentation  as  to  the  state  of  tlie  mine  ; 
but  he  having  visited  the  mine  himself,  and  the  alleged  mis- 
statements being  such  as  he  was  competent  to  detect,  the 
court  held  that  his  purchase  of  shares  had  not  been  made  in 
reliance  on  the  representations,  and  the  bill  was  dismissed 
both  by  Lord  Roniilly,  M.  R.,  and  the  court  of  appeal  in 

C.)  Lysney  V.  Selby.  2  Lord  Rayd..  HIS,    l^^-^^^^^^^X:i't<:.k.f^S^ 
"S6Cl.&FinV23-2.  ,         ^^..  ^  W  5  I)e  G.  M.  &  G..  I'^O;  aniru.ing  S.  C..  17 

(n  Cf.  Aberamiin  Iron  Works  v.  W  ickcns,    Bcav.,  234. 


330         FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

chancery.  "I  desire,"  said  Knight  Bruce,  L,  J.,  "to  be 
understood  as  at  once  giving  my  opinion  against  the  plain- 
tiff with  regard  to  every  '  object  of  sense '  which  on  either 
visit  to  the  mine  he  may,  as  an  educated  man  of  ordinary 
intelligence,  having  the  use  of  his  eyes,  his  mind  on  the  alert 
-and  his  interest  awakened,  be  reasonably  taken  (whether 
much  or  little  of  a  workman  or  a  philosopher)  to  have  ob- 
served. "(^)  With  this  last  mentioned  case  may  advantage- 
ously be  brought  into  comparison  the  case  of  Higgins  v. 
Samels,(?^)  where  the  rei)resentation  was  as  to  the  character 
of  the  lime  which  could  be  made  from  the  stone  under  a 
field,  and  where  after  this  statement  the  defendant  and  two 
friends  made  a  cursory  inspection  of  the  field  in  company 
with  the  plaintiff,  and  it  did  not  appear  that  any  of  the 
persons  were  competent  to  judge  by  inspection  of  the  quality 
of  the  stone  for  the  purpose  of  lime  burning.  In  this  case 
Lord  Hatherley  (then  V.  C.)  considered  that  the  inspection 
did  not  preclude  the  defendant  from  relying  upon  the  mis- 
representation. 

§  653.  Where  a  purchaser  comi)lained  of  a  representation 
that  the  woods  sold  had  yielded  £250  per  annum  on  an  aver- 
age of  fifteen  years,  on  the  ground  that  though  they  might 
in  fact  have  done  so,  yet  that  they  would  not  have  done  sq 
in  a  fair  course  of  husbandry,  his  objection  was  held  to  be 
displaced  by  proof  that  he  had  been  put  in  possession  of  a 
paper  from  which  he  might  have  ascertained  that  the  woods 
had  been  unequally  cut.(«) 

§  653.  The  allegation  of  misrepresentation  may  also  be 
effectually  met  by  proof  that  the  party  alleging  it  was  from 
the  beginning  cognisant  of  all  the  matters  comjolained  of,(^o) 
or  after  full  information  concerning  them  continued  to  act 
on  the  footing  of  the  contract,  or  to  deal  with  the  property 
comprised  in  it  as  if  held  under  the  contract :  as,  for  in- 
stance, where  a  lessee  of  a  mine,  after  knowledge  of  alleged 
misrepresentation,  continued  to  work  it.{xy 

(i)  5De  G.  M.  &  G.,  131.  See,  al^o.  Hay  (w)  Cf.  Nene  Valley  Drainage  Commission- 
wood  V.  Cope,  25  Beav.,  140,  and  Jefferys  v.  ers  v.  Dunkley.  4  Ch.  D.,  1,  where  misde- 
Fairs.  4  Ch.  D.,  448.  Bcription  was  alleged. 

(u)  2  J.  &  H.,  4b0.  (x)  Vigers  v.   Pike,  8  Cl.  &  Fin.,  562,  650; 

(V)  Lowndes  v.  Lane,  2  Cox,  363.    See,  too,  Hume  v.  Pocock,  L.  R.  1  Eq  ,  423;  1  Ch.,  379. 
€larke  v.  Mackintosh,  4  Giff  ,  134;  11  W.  R  , 
«52. 

'  At  law,  subsequent  performance  on  the  part  of  the  one  defendant,  with 
knowledge  of  the  fraud  acquired  subsequently  to  the  making  of  the  agreement, 


MISREPRESENTATION.  331 

§  654.  Whether  a  misrepresentation  not  of  fact,  but  of 
law,  would  afford  a  defense  to  an  action  for  specific  perfonn- 
ance  has  not,  it  is  believed,  been  decided. (?/)  But  for  the 
purposes  of  holding  a  defendant  liable  to  make  good  a  rep- 
resentation, or  of  rescinding  a  contract,  it  is  certain  that  it 
must  be  a  statement  not  of  law,  but  of  fact.  (2)  Every  one 
is  taken  to  know  the  law.' 

§  G35.  Questions  of  title  are  mixed  questions  of  law  and 
fact :  but  where  the  vendors  knew  of  a  fact  which  destroyed 
their  title  to  a  material  part  of  the  property  sold  (viz. :  the 
fact  that  it  was  a  recent  encroachment  from  a  common),  and, 
nevertheless,  represented  that  they  were  the  owners  in  fee 
simple  or  had  free  power  to  dispose  of  the  inheritance  of 
the  whole  of  the  proj)erty  sold,  and  the  abstract  tliey  deliv- 
ered did  not  disclose  the  material  fact,  it  was  held  by  Grant, 
M,  It.,  and  Lord  Eldon  that  a  bill  for  rescission  could  be 
maintained.     This  was  the  case  of  Edwards  v.  M'Leay.(a) 

§  650.  But  it  must  not  thence  be  inferred  that  every  rep- 
resentation that  the  vendor  has  a  good  title  will  enable  the 
purchaser  to  set  aside  an  executed  contract  or  successfully 
resist  specific  performance.  (5) 

§  657.  The  authority  of  Edwards  v.  M'Leay  was  followed 
and  relied  on  by  Knight  Bruce,  Y.  C,  in  the  celebrated  case 
of  Gibson  v.  D'Este,(c)  in  which  he  decided  that  the  knowl- 
edge in  the  vendor  or  her  agent  of  a  right  of  way  over  the 
property  sold  of  which  the  purchaser  was  not  aware,  and 
which  was  not  stated  to  him  by  the  vendor  or  her  agent,  was 
a  ground  for  the  rescission  of  the  contract.  This  decision 
was,  however,  overruled  by  the  House  of  Lords,  on  the 

(y)  See  infra,  §  765  et  seq.  Union,  9  W.  R.,  155;  Hart  v.  Swainc,  7  Ch. 

(z)  Beattie  v.  Lord  Eburv,  L.  R.  7  Ch.,  777;  D  .  42.  47. 

affirmed  in  D.  P.  L.  R.  7  II.  L  ,  102;  Legg  v.  (6)  Legge  v.  Crokcr,  1  Hall  &  B.,  506;  Uunie 

Croker,  1  Ball  &  B..  506  v.  I'ocock,  L.  R.  1  Eq  ,423;  1  fli  ,:379;  Brown- 

(a)  Coop., 308;  2S\v.,287;  St  Leon.Eawof  lie  v   Campbell,  5  A  pp.  i:  ,92a,  9,i7.   Cf.  Brett 

Prop.,  649.     See  Turner  v.  West  Bromwich  v.  Cloxvser.  5  C.  P.  D  .  376. 

(c)  2  Y.  &  C.  C.  C,  542. 

and  prior  to  its  performance,  precludes  bim  from  the  disaffirmauce  of  the  con- 
tract ;  or  suit  for  the  consideration,  but  does  not  bar  him  of  his  remedy  for 
damages.     Whitnej"  v.  Allaire,  4  Denio,  554. 

^  T7ie  repreiientation  mud  he  of  maliei'  of  fad,  and  not  of  a  matter  of  law, 
opinion,  judgment  or  mere  intention,  unless  the  expression  of  opinion  consti- 
tutes a  warranty,  or  that  of  intention  or  contract;  or  unless,  in  dealing  with 
another,  an  unconscionable  advantage  is  taken  of  his  ignorance  of  his  legal 
rights.  Adam's  Equity,  176;  see,  also,  Leake  on  Con.,  ]8'2:  Kerr  on  Fravid 
and  Mis.,  9U;  Curry  v-  Keyser.  ;!!)  Ind.,  214;  Colter  v.  .Morgan,  12  B.  Mou., 
278;  Townsend  v.  Coales,  31  Ala..  42^. 


382         FRY  ON  SPECIFIC  l>ERFOKMANCE  OF  COXTMACTS. 

principle  that,  in  order  to  set  aside  a  purchase  perfected  by 
conveyance  and  payment  of  the  purchase  money,  there  must 
be  proof  of  the  direct  personal  knowledge?  and  concealment 
by  the  principal,  and  not  merely  by  an  agent,  and  that  such 
proof  was  wanting  in  the  case.(rZ)  This  decision  has  by  no 
means  given  universal  satisfaction,  (e)  but  whether  correct 
or  not,  it  leaves  intact  the  doctrine  established  in  Edwards 
V.  McLeay. 

§  658.  Where  a  misrepresentation  has  been  made  by  the 
vendor  with  regard  to  some  patent  defect  in  the  thing  sold, 
and  it  is  proved  that  the  purchaser  had  seen  the  thing  sold, 
so  that  this  defect  must  have  been  known  to  him,  he  will 
not  be  able  to  avail  himself  of  the  defect  as  a  bar  to  specific 
performance.'  This  was  decided  by  Grant,  M.  R.,  in  the 
case  of  Dyer  v.  Hargrave,(/)  where  a  farm  was  described 
as  all  lying  within  a  ring-fence,  whereas  it  did  not  in  fact 
so  lie  ;  but  it  was  clearly  proved  that  the  defendant  had 
lived  in  the  neighborhood  all  his  life,  had  seen  the  farm  be- 
fore purchasing  it,  and  must  have  known  Avhether  it  did  lie 
in  a  ring-fence  or  not ;  and  on  these  facts  the  master  of  the 
rolls  decided  that  the  defendant  was  clearly  excluded  from 

(d)  Same  note,  Wilde  v.  Gibson,  1  H.  L.  C,       (e)  St.  Leon.  Law  of  Prop.,  614. 
605     See  Brownlie  V.  Campbell,  5  App  C,       (/)  10  Ves.,  505.    See  supra,  §  651. 
925.  937;  and  consider  Brett  v.  Clowser,  5  C. 
P.  D.,  376,  388. 


'  Each  party  having  an  opportunity  to  examine,  and  doing  so.']  "The  rule  that 
when  a  purchaser  has  exammed  property  containing  defects  which  can  be  dis- 
covered by  ordinary  vigiUmce,  he  is  not  entitled  to  relief  on  account  of  such 
defects,  does  not  apply  when  fraudulent  means  have  been  employed  to  conceal 
the  defects.  The  obligation  to  communicate  facts  ceases  when  each  party  has 
an  opportunity  of  examining  for  himself,  and  undertakes  to  do,  without  relying 
on  the  statements  of  the  other.  But  it  is  not  the  mere  opportunity  to  examine 
which  Telieves  the  other  party  from  the  duty  to  disclose  For  although  the 
opportunity  exists,  vet  if  the  purchaser  is  led  to  repose  confidence  in  the  vendor, 
and  does  not  examine  for  himself,  the  duty  to  disclose  defects  is  equally  obli- 
gatory, and  the  vendor  will  be  held  bound  for  all  statements  and  all  undue  con- 
cealm'e'nts."     Sharkey,  J.,  in  Hall  v.  Thompson,  1  Sm.  &  Marsh  ,  443. 

Purchaser  need  not  give  vendor  information  ofinhanced  value.]  The  purchaser 
is  not  bound  to  advise  the  vendor  of  a  fact  which  may  increase  the  value  of  the 
property.  There  may  be  a  mine  upon  the  land  of  vendor,  of  which  he  is 
ignorant,  an  intending  purchaser  who  is  aware  of  the  fact,  is  not  bound  to  dis- 
close it.  The  rule  appears  to  be,  that  the  vendor  must  put  the  purchaser  in 
possession  of  any  fact  which  decreases  the  value  of  the  property;  but  the  pur- 
chaser is  not  reciprocally  bound  to  advise  the  vendor  of  a  fact  which  may 
increase  its  value.  Fox  v.  Mackreth,  2  Bro.  C.  C,  400,  420;  Walters  v.  Morgan, 
3  De  G.  F.  cfc  .J.,  923;  Wilde  v.  Gibson,  1  H.  of  Lds.,  60o;  Laidlaw  v.  Organ, 
2  Wheat.,  178;  Livingston  v.  Penn.  Iron  Co.,  2  Paige's  Ch.,  390;  Perkins  v. 
McGanock,  Cooke,  4L5;  Smith  v.  Beaty,  2  Ired.  Eq.,  45G;  Harris  v.  Tyson,  24 
Pa.  St.,  347;  Butler's  App.,  26  Pa.  St.,  (53.  See  contra,  where  fraudulent  mis- 
representations were  used.     Swimm  v.  Bush,  23  Mich.,  99. 


MISREPRESENTATION.  333 

insisting  upon  the  misrepresentation  as  a  defense.  This 
principle  will,  of  course,  only  apply  where  the  thing  in  re- 
spect of  which  the  representation  is  made  is  one  perfectly 
visible  to  everybody.  (<7) 

§  659.  This  case  Avas  supported  by  Grant,  M.  R.,  by  the 
analogy  of  warranties  at  common  law,  in  which,  however 
general,  defects  apparent  at  the  time  of  the  bargain  are  not 
included,  because  they  can  form  no  subject  of  deceit  or 
fraud ;  so  that,  for  example,  a  person  avIio  buys  a  horse 
knowing  it  to  be  blind  in  both  eyes,  cannot  sue  for  this  de- 
fect on  a  general  warranty  of  soundness.  (^) 

§  660.  But  for  the  vendor  thus  to  countervail  the  effects 
of  his  own  misrepresentation,  the  evidence  of  knowledge  in 
the  other  party  must  be  conclusive;  he  "must  show  very 
clearly  that  the  purchaser  knew  that  to  be  untrue  which 
was  represented  to  him  as  true ;  for  no  man  can  be  heard 
to  say  that  he  is  to  be  assumed  not  to  have  spoken  the 
truth,  "(i)' 

§  661.  Such  being  the  proof  required,  it  is  very  certain 

(a)  Grant  v.  Munt,  Coop.,  173;  infra,  S  849  Macaulay,  2  De  G.  M.  &  G.,346;  Wilson  ▼. 

et  seq.  Short,  6  Ha.,  366,  378;  Dyer  t.  Hargrave,  >• 

(ft)  Bayly  v.  Merrel,  Cro.  Jac  ,  386;  Marget-  Ves.,  505;  Levlanrt  v.  Illlngworth,  2  De  G.  F. 

eon  V.  Wright,  7  Blng.,  603  &  J.,  248;  Colby  v.  Gadsden,  34  Beav.,  410. 

(»■)  Per  Knight  Bruce,  L.  J.,  In  Price  v. 

'  Chitty's  Contr.  (6th  Am.  ed.).  445,  446;  Story's  Contr.,  §§  530,  532.  Th« 
r»le,  lioweTer,  at  law,  is  not  everywhere  uniform.  "A  general  warranty," 
says  Mr.  Parsons  (vol.  1,  bk.  3,  ch.  5,  p.  400,  n.  [i]),  "is  said  iiot  to  cover  tltv 
fects  plain  and  obvious  to  the  purchaser,  or  of  which  he  had  coi^nizance:  thus, 
if  a  horse  be  warranted  perfect,  and  want  a  tail  or  an  ear.  13  H.,  4,  1  b,  pi.,  4; 
11  Edw.,  4,  6  b,  pi.,  10;  Southerue  v.  Howe,  2  Rol.  Rep.,  5;  Lon^  v.  Hicks,  3 
Hump.,  305;  Schuyler  y.  Russ,  2  Gaines,  203;  .Margetsou  v.  Wriirht,  5  M.  & 
P.,  606;  Dillard  v.  Moore,  2  Eng.  (Ark.),  166.  The  same  rule  iipplies  whetlier 
the  warranty  is  express  or  whetlier  the  warranty  is  implied  by  law,  from  a 
jsound  price,  as  is  the  case  in  some  States.  Richardson  v.  .Tohuson,  1  Louis. 
Ann.  Rep.,  389.  But  care  should  be  taken  not  to  misunderstand  nor  misapply 
this  rule.  A  vendor  may  warrant  against  a  defect  which  is  patent  and  obvious 
as  well  as  against  any  other.  And  a  general  warranty  that  a  horse  was  .wm/w/, 
{or  instance,  would,  perhaps,  be  broken,  if  one  eye  was  so  badly  injured,  or  so 
malformed  as  to  be  entirely  useless;  and  although  this  defect  might  have  l»een 
noticed  by  the  purchaser  at  the  time  of  sale.  He  may  choose  to  rely  upon  the 
warranty  of  the  vendor,  rather  than  upon  his  own  judgment,  and  we  see  not 
why  he  should  not  be  permitted  to  do  so.  A  warranty  that  a  horse  is  ^^ouud  i3 
broken  if  he  cannot  see  with  one  eye.  House  v.  Fort,  4  Blackf.  ~'^'^-  ^>  "7 
may  not  the  vendor  be  equally  liable  if  one  eye  was  entirely  gone  ?  In  Marget- 
sou v.  Wright  8  Bing.,  454,  7  id.,  603,  a  horse  warranted  sound  had  a  splint 
then-  this  was  ■msible  at  the  time  of  the  sale;  but  the  animal  was  not  then  lame 
from  it  He  afterwards  became  lame  from  the  effects  of  it,  and  the  warranty 
was  held  to  be  broken.  In  Liddard  v.  Kain,  2.Bing. .  183.  an  acti(Mi  was  brought 
to  recover  the  value  of  horses  sold  and  delivered.  The  detonse  was  that,  at  the 
time  of  the  purchase,  the  plaintiiT  agreed  to  deliver  the  horses  at  the  end  ol  a 
fortnight,  sound  and  free  from  blemish,  and  that  at  the  end  of  a  fortnight  one 
had  a  cough  and  the  other  a  swelled  leg;  but  it  also  appeared  that  the  .seller 
informed  the  buyer  that  one  of  the  horses  had  a  cold  on  him.  and  that  this,  as 
well  as  the  swelled  leg,  was  apparent  to  every  observer.     The  jury  having 


334         FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

tliat  the  mere  circnmstance  of  other  means  of  knowledge 
being  open  to  the  purchaser  will  not  have  this  effect,  even 
though,  independently  of  any  statement,  the  party  relying 
on  the  representation  would  in  law  have  been  taken  to  have 
had  notice  of  the  contrary.  The  doctrine  of  notice  has  ho 
application  where  there  has  been  a  representation  as  to  the 
fact  of  which  notice  would  be  implied  ;(,/)  the  proof  must  go 
further,  and  clearly  show  the  purchaser  to  have  had  commu- 
nicated to  his  mind  information  of  the  real  state  of  facts.  (^) 

§  662.  Therefore,  where  a  distinct  representation  has 
been  made,  it  will  not  be  countervailed  by  any  general 
statement  or  any  circumstances  from  which  an  inference 
inconsistent  with  the  representation  might  be  drawn,  even 
though,  in  the  absence  of  such  representation,  they  might 
be  sufficient  to  put  the  other  party  on  inquiry.  (Z) 

§  663.  These  principles  are  apijlicable  not  only  where 
the  deceived  party  resists  specific  perfoiTnance,  but  where 
he  assumes  the  position  of  plaintiff  and  seeks  to  set  aside 
the  contract  on  the  ground  of  misrepresentation.  In  Raw- 
lins V.  Wickham,(77^)  the  plaintiff  successfully  repudiated  a 
contract  of  partnership  after  he  had  been  a  partner  for  four 
years  with  full  power  of  access  to  the  books,  and  these 
books  would  have  shown  the  falsity  of  the  representation 
made  to  him. 

§  664.  Nor  will  it  prevent  the  effect  of  a  misrepresenta- 
tion that  the  party  making  it  recommended  the  other  to 
consult  his  friends  and  professional  advisors,  for  "no  man 
can  complain  that  another  has  too  implicitly  relied  on  the 
truth  of  what  he  has  himself  stated." (/i) 

( j)  Drysdale  v.  ]Vlace,2  Sm.  &  Gif.,  225, 230;        (l)  Wilson  v.  Short,  6  Ha..  366,  377. 
cf.  per  Jessel.M.R.,  in  Jones  v.lllmmer.U        (m)l  Giff  .  355;  3  De  G.  &  J  ,  304. 
Cli  D    590  W  Beynell  v.  Sprye,  1  De  G.  M.  &  G.,  660, 

ik)  Price' V.  Macaulay.  2  De  G.  M.  &  G.,  339.    7lU;  Dobell  v.  Stevens,  3  B.  &  C,  623. 
See,  also,  Gibson  v.  D'Este,  2  Y.  &  C.  C.  C, 
542,  572. 

found  a  verdict  for  the  defendant,  a  rule  for  a  new  trial  was  moved  on,  on 
the  ground  that  where  defects  are  patent,  a  warranty  against  them  is  in- 
operative. The  court  refused  the  rule,  on  the  ground  that  the  warranty  did 
not  apply  to  the  time  of  the  sale,  but  to  a  subsequent  period.  In  Stucky  v. 
Clyburn,  Cheves,  186,  a  slave  sold  had  a  hernia;  this  was  known  to  the  buyer. 
Yet  it  was  held  to  be  within  an  express  warranty  of  soundness.  So  of  a  swell- 
ing in  the  abdomen,  plainly  visible  and  known  to  the  purchaser.  _  Wilson  v. 
Ferguson,  Cheves,  109.  So  where  a  slave  had  the  scrofula  at  the  time  of  sale. 
Thompson  v.  Botts,  8  Mis.,  710.  And  where  a  defect  is  obvious,  yet,  if  the 
purchaser  be  misled  as  to  its  character  or  extent,  a  warranty  is  implied.  Wood 
V.  Ashe,  3  Strobh's  L.,  64."  Upon  this  view  of  the  case,  the  analogy  of  Sir 
William  Grant,  in  Bayly  v.  Merrel,  referred  to  in  the  text,  would  be  neither  so 
cogent  nor  so  apt  in  this  country  as  in  England. 


MISEEPRESENTATIOX.  335 

§  660.  Thus  where  a  misrepresentation  is  made  V)y  a 
vendor  in  respect  of  a  lease,  of  the  covenants  in  which  tlie 
purchaser  would,  by  law,  be  implied  to  have  notice,  the  ven- 
dor will  be  equally  bound  by  his  statement  as  if  no  such 
implication  arose,  (o) 

On  the  same  principle  it  was  decided  that  where  a  vendor 
represented  the  house  to  be  substantially  and  well  built, 
and  it  proved  to  be  the  contrary,  the  vendor  was  not  enti- 
tled to  specific  perfomiance,  though  the  defendant  miglit,. 
of  course,  have  inquired  into  its  actual  state  {p) 

§  666.  In  Harris  v.  Kemble(5')  there  was  a  contract  con- 
sequent uj)on  certain  misrepresentations  as  to  the  profits  of 
a  theatre.  Leach,  V.  C,  was  of  opinion  that  these  repre- 
sentations, being  manifestly  founded  on  accounts  which 
were  equally  open  to  both  parties  (they  being  joint  owners 
of  the  theater),  and  being  Justified  by  the  accounts,  did  not 
avoid  the  contract ;  but  his  decision  was  overruled  by  Lord 
Lyndhurst  and  afterwards  by  the  House  of  Lords,  on  the 
ground  that  the  representations  were  made  with  a  view  to- 
the  contract,  and  that  the  accounts  were  so  kept  as  to  ivn- 
der  it  difficult  without  employing  an  accountant  to  draw 
any  certain  conclusion  from  them, 

§  667.  The  circumstance  that  the  vendor  sold  "with  all 
faults,"  though  it  may  serve  to  put  the  purchaser  on  liis 
guard,  will  not  enable  the  vendor  to  say  that  the  purchaser 
did  not  rely  on  any  representation  made,  or  prevent  the 
purchaser  from  avoiding  the  sale,  if  that  representation 
were  false,  (r) 

§  668.  The  principle  that,  in  order  to  render  a  misrep- 
resentation operative,  there  must  be  reliance  on  it  by  the 
party  who  uses  it  as  a  defense,  applies  to  the  case  of  the 
assignment  of  a  contract  originally  att'ected  by  such  a 
circumstance:  thus  it  seems  that  if  A.  contract  with  B., 
and  in  so  doing  there  are  misrepresentations  on  the  part  of 
A.  which  would  prevent  his  enforcing  the  contract  against 
B.,  and  B.  assign  the  contract  to  C,  on  v.hom  no  fraud  is 
practised  and  who  is  not  afi'ected  by  the  original  misrepre- 
sentation, in  such  circumstances  the  contract  might   be 

(0)  Van  Y.  Corpe,  3  My.  &  K.,  269;  Flight  (?)  1  Sm  .  111.  particularly  IM;  S.C  ,5  BU. 

l^iTV^-'^'''^^^I^^^''A\l-t  ^^(Vric{,nei.lcr.v.  Heath. 3  Cam..  5^.    See. 

Long,  6  Beav.,  590.                         ^„  also.  i^^f".  §  ^^' ■ 

Cp)  Cox  v.  MiUdleton,  2  Drew,  209. 


336        FRY  ox  SPECIFIC  PERFORlMAlSrCE  OF  CONTRACTS. 

enforced  against  C,  for  he  placed  no  reliance  on  tlie  mis- 
representation made  to  B.{s) 

§  669.  From  the  same  principle  it  follows  that  if  A.  make 
a  misrei)resentation  to  the  agent  of  B.,  which  is  believed  by 
the  agent  to  be  true  but  known  by  B.  to  be  false,  B.  cannot 
avail  himself  of  this  as  a  defense  to  specific  performance(^)' 

§  670.  (6)  It  is,  for  obvious  reasons,  necessary,  to  consti- 
tute a  misrepresentation  which  will  prevent  a  specific  per- 
formance, that  the  statement  in  question  shall  be  so  material 
to  the  contract  built  on  it  that,  if  the  statement  be  false,  the 
contract  becomes  one  which  it  w^ould  be  unconscionable  for 
the  party  having  made  the  statement  to  enforce.  In  other 
words,  the  misrepresentation  must  be  shown  to  have  oper- 
ated to  the  prejudice  of  the  defendant. (?/)  Tlierefore,  where 
A.  induced  a  i^urchaser  to  think  that  he  was  contracting 
with  B.  through  his  (A.'s)  agency,  whereas  he  was,  in  fact, 
contracting  with  A.  himself,  but  there  was  nothing  to  in- 
duce the  belief  that  he  would  not  have  contracted  on  the 
same  terms  with  A.,  or  that  he  had  sustained  any  loss  or 
inconvenience  from  acting  under  the  mistake,  the  court 
enforced  performance  of  the  contract.  (»)  But  it  is  sufficient 
if  the  misrepresentation  operate  to  the  prejudice  of  the  de- 
fendant to  a  very  small  extent,  (w) 

§  671.  The  effect  of  misrepresentation  on  the  contract 
and  the  rights  of  the  parties  und-er  it  is  considered  in  con- 
nection with  cases  of  fraud  in  the  next  chapter. 

(s)  gmith  V.  Clarke,  18  Ves.,  477,  484.  in  antecedentem  qui  dat  cau8am  con-tractui, 

(t)  Nelson  V.  Stocker,  4  De  G.  &  J.,  458.  ita  ut,  eo  absente,  contractu*  non  fleret,  et  in 

(u)  See  Polhill  V.  Walter,  3  B.  &  Ad.,  114.  eoncomitantem,  geu    incldentem,  quo    etiam 

(v)  Fellowea  v..  Lord  Gwydyr,  1  Sim.,  63;  absente  adhuc  contractus  Iniretur.     *    *     « 

S.  C,  1  R.  &  My.,  83;  cf.  Flint  v.  Woodin,  9  Si  error  circa  solam  qualltatem  accidentalem 

Ha.,  618.  contigerit,  qua?  simul  cum  substantia  rei  non 

(w)  Cadman  v.  Horner,  18  Ves.,  10.    Tbe  ingreditur  objectum  substantiale  conti-actus, 

distinction  of  tue  casuists  between  trroy-  ante-  hie  validus  omnino  persistet."    Mariani  Ex- 

cedens  and  concomitant  was  the  same  as  that  amen,  §  279. 

referred  to  in  this  section.    Error  "  divlditur 

'  Fraudulent  representations  by  the  agent  of  a  corpoi'atlon.]  Tlie  corporation  i« 
bound  by  the  acts  of  its  accredited  agent,  acting  within  the  scope  of  liis 
authority,  and  must  be  held  for  his  fraudulent  acts.  Burnes  v.  Penuell,  2  H. 
of  Lds.,  499 ;  National  Exch.  Co.  v.  Drew,  2  Mcll.,  125;  Ranger  v.  Gt.  Western 
R.  R.  Co.,  5  H.  of  Lds.,  86;  Custer  v.  Titusville  Water  and  Gas  Co.,  63  Pa.  St., 
381;  see,  however,  Brockwell's  Case,  4  Drew,  205. 

Where  the  agent  has  no  avthority.'\  Where  an  agent  has  no  authority  to  do 
the  act,  yet  where  a  principal  suffers  a  party  to  expend  his  money,  believing 
that  the  representations  of  such  agent  were  authorized  by  the  principal,  equity 
will  not  suffer  such  principle  to  plead  that  his  agent  had  no  authority.  Kerr 
on  Fraud  and  Mis.,  117;  Ramsden  v.  Dyson,  L.  R.  1  Ch.,  129. 


FRAUD.  337 


CHAPTER  XIY. 

OF   FKAUD. 

§  673.  Fraud  is,  of  course,  a  larger  word  tlian  misrepre- 
sentation, and  includes  not  only  misrepresentation  when 
fraudulent,  wliicli  lias  already  been  considered,  but  also  all 
other  unconscionable  and  deceptive  dealing  of  either  party 
to  any  contract,' 

§  673.  Fraud  comes  before  the  court  in  several  relations  ; 
as  a  defense  to  an  action  on  the  contract ;  as  the  ground  for 
an  action  for  deceit ;  as  a  ground  for  setting  aside  an  exe- 
cutory or  even  an  executed  contract ;  as  a  defense  to  an 
action  for  si')ecific  performance  ;  or,  lastly,  as  forming  an 
exception  to  the  Statute  of  Frauds,  in  which  relation  it  has 
been  considered  in  the  chapter  {a)  on  that  statute. 

§  674.  Fraud  may  arise  either  in  the  obtaining  of  the 
contract,  or  in  the  course  of  its  performance. 

Fraud  in  the  obtaining  of  the  contract  has  long  been  held 
aground  for  the  cancellation  of  the  contract ;  and  a  fortiori 
it  presents  a  complete  defense  to  an  action  for  specific  i)er- 
formance. 

§  675.  Whether  fraud  in  the  course  of  its  performance  is 
in  all  cases  a  ground  for  the  rescission  of  a  contract  is  a  point 
which  cannot  be  considered  as  finally  settled :  it  certainl}^ 
appears  to  be  so  in  all  cases  in  which  rescission  is  the  only 
adequate  remedy.  (/>)  It  is  conceived  that  in  no  case  could 
a  party  guilty  of  fraud  in  the  performance  of  a  contract  ask 

(a)  Part  III,  chap,  xi,  §  544  et  seq.  Co.  v.  India-rubber,  Gutta-percha  and  Telc- 

(6)  Panama  and  South  Pacific  Telegraph    graph  Works  Co.,  L.  R  10  Ch.,  515. 

'  *'/«,  order  to  constitute  fraud  at  common  law,  it  is  not  enough  to  show  that 
fraud,  in  the  sense  of  misrepresentation  and  undue  advantage  of  the  i>ositiou 
of  the  parties  said  to  be  imposed  upon,  has  been  committed:  but  tlie  extent  of 
the  fraud  must  be  brought  home  to  the  part}'  to  the  action  who  is  charged  with 
it.  In  tlie  case  of  frauds  in  the  sense  of  a  court  of  eijuity,  a  court  of  equity 
will  take  into  account  all  the  circumstances  of  the  case — not  only  the  act  anii 
intention  of  the  party,  but  the  circumstances  under  which  the  act  was  done 
the  position  of  the  party  who  is  said  to  be  imposed  upon;  his  being  inojw  con- 
silii;  his  being  in  a  sense  of  bodily,  and  therefore  mental,  weakness,  and  so  ou — 
non  constat,  these  are  sufficient  to  eoustitute  lesral  fraud.'"  Kinderslev,  V.  C,  in 
Stewart  v.  Greatwest.  R.  R.  Co.,  2  Dr.  &  Sm.,  438;  llJur.  (N.  S.),  627.    "  Fraud 

22 


338        FRY  ON  SrECIFIC  PEKFOKMANCE  OF  CONTRACTS. 

the  court  to  interfere  for  the  purpose  of  enforcing  its  further 
performance.  Thus  if  A.  were  to  contract  with  B.  for  the 
sale  of  an  estate  at  such  a  price  as  C.  should  fix  and  then 
were  to  bribe  C.  to  fix  a  very  high  price,  A.  could  never,  it 
is  submitted,  bring  an  action  against  B.  for  the  performance 
of  the  contract  either  at  a  price  to  be  fixed  by  C.  or  by  any 
third  person. 

§  676.  In  the  chapter  on  misrepresentation  it  has  been 
seen,  that  the  suggestion  of  what  is  false  is  a  ground  for  re- 
fusing specific  performance,  and  also  in  certain  cases  for 
rescinding  contracts :  the  same  results  flow  from  the  non- 
disclosure of  a  fact  which  is  material,  and  which  it  is  the 
duty  of  one  party  to  the  contract  to  disclose  to  the  other,  (c) 

(c)  The  question  as  to  what  facts  which  "  non  ergo  generaliter  sequendum  illud  ejus- 
micht  Influence  the  mind  of  one  party  it  is  deni  Ciceronis,  celare  esse,  cum  tu  quod  scias 
the  duty  of  the  other,  If  knowing  of  them,  to  id  ignorare  eraolumenti  tui  causa  velis  eos 
communicate,  is  one  of  great  difliculty.  It  is  iiuorum  intersit  scire :  sed  tum  demum  id 
discussed  by  Cicero  in  a  well-known  pas-  locum  habet,  cum  de  ns  agitur  qua;  rem  sub- 
sage  (De  Offic.  lib.  ili,  c.  13  et  seq.);  culpable  jectam  per  se  contingunt."  De  Jur.  Belli  ac 
concealment  being  in  his  opinion  "cum  quod  Pacis,  lib  il,  c  12  s.  9.  See,,^l«o>  Potoer, 
tu  scias  id  ignorare  emolumenti  tui  causa  Tr.  du  Contrat  de  Vente,  Part  II,  chap.  2,  and 
veils  eos  quorum  intersit  id  scire."  (C.  13.)  supra,  §  684,  note  1.  Consider  Blenkhorn  v. 
The  limitation  put  by  Grotius  on  this  princi-  Penrose,  29  W.  R.,  -237. 
pie  would  probably  be  adopted  by  our  law, 

is  infinite ;  and  were  a  court  of  equity  to  lay  down  rules  how  far  they  would 
go,  and  no  further,  in  extending  their  relief  against  it,  or  to  define  strictly  the 
species,  or  evidence  of  it,  the  jurisdiction  would  be  cramped,  and  perpetually 
eluded  by  the  new  schemes  which  the  fertility  of  man's  invention  would  con- 
trive "  Park's  Hist,  of  Chanc,  508.  Lord  Hardwick  says,  in  Lawley  v. 
Hooper,  3  Atk.,  278:  "The  court  very  wisely  hath  never  laid  down  any  gen- 
eral rule  beyond  which  it  will  not  go,  lest  other  means  for  avoiding  the  equity 
of  the  court  should  be  found  out."  See,  also,  Kennedy  v.  Kennedy,  3  Ala., 
571-  Belcher  v.  Belcher,  10  Yerg.,  121;  Gale  v.  Gale,  19  Barb.,  249;  Laidlaw 
V.  Organ,  2  Wheat.,  105;  Smith  v.  Richards,  13  Pet.,  36;  Tyler  v.  Black,  13 
How.,  231. 

Hoioframlistobesnoim'\  "A  deduction  of  fraud  may  be  made  not  only 
from  deceptive  assertions  and  false  representations,  but  from  facts,  incidents 
and  circumstances  which  may  be  trivial  in  themselves,  but  may,  in  a  given 
case  often  be  decisive  of  a  fraudulent  design."  2  Kent's  Com.,  484.  Where 
a  party  seeks  relief  on  the  ground  of  fraud,  he  who  alleges  the  fraud  has  the 
burden  of  proof;  it  must  be  proved  as  alleged.  Blair  v  Bromley,  5  Hare,  559; 
Lomax  v.  Ripley,  24  L.  J.  Ch.,  254;  Smith  v.  Kay,  7  H.  of  Lds.,  750;  Mowatt 
V  Blake  31  L.T.,  387;  .Jenning  v.  Broughton,  17  Beav.,234;  Burton  v.  Blake- 
more,  2  Jur.,  1062;  Brock  v.  McNaughtney,  5  Mon.,  216;  Gibson  v.  Randolph, 
2  Munf.,  310;  Gerde  v.  Hawkins,  2  Dev.'s  Eq.,  398;  Eyre  v.  Potter,  15  How., 
42;  Blaisdell  v.  Cowell,  14 Me.,  370. 

Fraud  in  matters  of  contract.']  Lord  Hardwick  has  divided  fraud  in  matters 
of  contract  into  four  heads.  "  1st.  Actual  fraud  arising  from  facts  and  cir- 
cumstances of  imposition.  2d.  Fraud  arising  from  the  mtrinsic  nature  and 
subject  of  the  bargain.  3d.  Fraud  presumed  from  the  circumstances  of  the 
bargain.  4th.  Fraud  inferred  from  the  circumstances,  and  affecting  some  third 
person  not  a  party  to  the  transaction. "  Chesterfield  v.  Jansen,  2  Ves.  Sen. ,  125. 
Fraud  very  different  from  mistake.']  Where  the  cause  of  action  is  based  on 
fraud,  it  is  very  different  from  one  based  on  a  mistake  alone.  One  cannot  be 
substituted  for  the  other  on  the  trial.  Ross  v.  Mather,  51  N.  Y.,  108;  Hadley 
V.  ScrantOD,  57  N.  Y.,  424;  Burnham  v.  Walkup,  54  id.,  656. 


FKAUD.  339 

or  from  the  active  suppression  and  concealment  of  a  fact 
which  is  material, 'and  which  the  other  party  would  have 
come  to  know,  but  for  such  suppression  and  concealment. 

But  mere  silence  as  regards  a  material  fact  which  the 
one  party  is  not  under  an  obligation  to  disclose  to  the  other 
cannot  be  a  ground  for  rescission  or  a  defense  to  specific 
performance. 

It  becomes  then  most  material  to  consider  what  facts 
either  party  to  a  contract  is  bound  to  disclose  to  the  other. 

§  677.  The  obligation  to  disclose  arises  in  various 
ways.(^)' 

(d)  See  Davies  v.  London  and  Provincial  Marine  Insurance  Co.,  8  Ch.  D.,  469,  474. 

'  It  was  decided  in  White  v.  Flora,  2  Overton,  426,  that  the  concealment  of 
a  truth  which,  if  correctly  known,  would  probably  be  a  reason  for  making  the 
terms  of  the  contract  different,  is  a  good  ground  for  rescinding  the  contract  in 
equity.  In  Snelson  v  Franklin,  6  iMun.,  210,  the  owner  of  a  lease  agreed  for 
the  sale  of  it,  without  showing  the  lease  to  the  vendee,  or  informing  him  of  a 
provision  in  it,  to  the  effect  that  in  the  case  of  the  destruction,  by  fire,  of  the 
liouse  leased,  the  term  should  then  cease  and  determine.  In  the  agreement 
of  sale,  it  was  represented  that  the  lease  was  to  continue  four  years.  The  house 
being  burned  soon  after  the  sale,  it  was  held  that  equity  would  relieve  the  ven- 
dee by  enjoining  the  vendor  from  collecting  the  purchase  money,  and  directing 
his  notes  therefor  to  be  given  up  and  canceled.  See,  also,  McNeil  v.  Baird,  6 
Munf.,  316;  Pollard  v.  Rogers,  4  Call,  439.  In  Halls  v.  Thompson,  1  S  &  M., 
443,  the  concealment  by  the  vendor  of  material  facts,  calculated  to  influence 
the  vendee,  or  operate  to  his  prejudice,  were  held  to  be  fraudulent.  In  White 
V.  Cox,  3  Hayw.,  79,  it  was  again  held  that  suppression  of  a  truth  is  sufficient 
ground  for  setting  aside  a  contract  in  equity.  Rawdon  v.  Blatchford,  1  Sandf., 
344.  affords  another  illustration  of  the  same  rule.  In  that  case,  A.  borrowed 
money  of  B.,  and  secured  it  by  the  transfer  of  stocks.  A.  was  then  cashier  of 
a  bank,  and  so  continued  until  its  failure,  when  it  appeared  that  he  was  a  de- 
faulter to  the  bank  for  a  large  sum,  and  was  insolvent.  While  this  was  known 
to  the  bank  commissioners  only,  he  obtained  the  stock  from  B  ,  without  con- 
sideration, upon  a  representation  that  he  wanted  it  for  a  particular  purpose, 
and  would  substitute  other  security  for  it.  His  purpose,  which  was  to  transfer 
the  stock  to  the  bank,  to  prevent  a  public  disclosure,  he  withheld  from  B.  On 
obtaining  the  stock,  he  immediately  transferred  it  to  the  bank.  Held,  that  A.'s 
concealment  of  his  situation  and  purpose  was  a  fraud  uponB.,  and  that  the 
bank  could  not  retain  the  stock  for  its  demand  against  A.  But  where  a  vendee, 
in  conversation  with  a  vendor,  charged  him  with  having  concealed  an  incum- 
brance upon  the  land  sold,  and  the  vendor  neither  admitted  nor  denied  it,  it 
was  held  that  this  was  not  sufficient  evidence  of  fraudulent  concealment  to  jus- 
tify a  rescission  of  the  contract-  Halls  v.  Thompson,  1  S.  &  ]M.,  443.  At  law 
it  is  well  settled  that  a  vendor  may  be  silent,  leaving  the  purchaser  to  require  a 
warranty.  He  may  be  silent  and  be  safe.  To  vitiate  the  sale  there  must  be 
active  fraud;  that  is,  if  by  acts  or  words  he  leads  the  buyer  astray,  then  he  ex- 
poses himself  to  the  consequences  of  an  action  at  law.  Pars.  Contr.,  vol.  1, 
p.  461;  but  see  the  case  of  Hill  v.  Gray,  1  Stark.,  434.  There  a  picture  was 
sold  which  the  buyer  beliexed  had  been  the  property  of  Sir  Felix  Agar,  a  cir- 
cumstance which  might  have  enhanced  its  value  in  his  eyes.  The  seller  knew 
that  the  purchaser  was  laboring  under  this  delusion,  and  did  not  remove  it;  but 
it  did  not  appear  that  he  either  induced  or  strengthened  it.  In  an  action  for 
the  price.  Lord  Ellenborough  nonsuited  the  plaintiff,  saying  that  the  picture 
was  sold  under  a  deception.  The  seller  ought  not  to  have  let  in  a  suspicion  on 
the  part  of  the  purchaser,  which  he  knew  enhanced  its  value.  He  saw  that  the 
purchaser  had  fallen  into  a  delusion,  but  did  not  remove  it.    From  the  report 


340        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

(1)  Where  the  parties  to  a  contract  stand  in  some  pre- 
existing relationship  to  one  another  of  a  fiduciai-y  character 
(as,  for  example,  the  relation  of  agent  and  principal), (e)  they 
can  only  deal  after  the  most  full  disclosure.  The  relations 
of  trustee  and  cestui  que  trust,{f)  solicitor  and  client,  part- 
ner and  partner,  are  all  well  known  to  be  of  a  fiduciary  kind. 
The  cases  arising  out  of  such  relationships  show  that  when 
there  is  a  non-disclosure  of  that  which  it  is  the  plaintiff's 
duty  to  disclose,  no  specific  performance  can  be  granted. 

§  678.  (2)  Sometimes  the  obligation  to  disclose  may  even 
arise  from  an  antecedent  wrong  done  by  the  one  party  to  the 
other.  "If,"  said  Lord  Hatherley,  "a  man  knows  that  he 
has  committed  a  trespass  of  a  very  serious  character  upon 
his  neighbor' s  propertj^  and  finding  it  convenient  to  screen 
himself  from  the  consequences,  makes  a  proposal  for  the 
purchase  of  that  property,  he  certainly  ought  to  communi- 
cate to  the  person  with  whom  he  is  dealing  the  exact  state 
of  the  circumstances  of  the  case:"(p')  and  on  that  ground 
and  under  these  circumstances  specific  performance  was 
refused. 

(«)  See  Imperial  Mercantile  Credit  Associa-  tionship  imposing  a  similar  obligation.    See 

tion  V.  Coleman,  I>.  R.  6  H.  L.,  189;  Dunne  per  James,  L.  J.,  in  Dicconson  v.  Talbot,  L. 

V.  English,  L.  R.  18  Eq,  524.  R.  6  Ch.,  37.                           ,    „„.^    ,.,„,„ 

(/)  Probably  in  the  case  of  a  tenant  for  life  {g)  Phillips  v.  Homfray,  L.  R.  6Ch.,  uO,  ,79. 
purchasing  from  his  trustees  there  is  a  rela- 

itself  it  might  be  seen  that  Lord  EUeuborough  here  held  that  silence  alone  was 
a  fraudulent  concealment,  sufficient  to  vitiate  the  sale.  But  this  is  explained 
in  the  late  English  case  of  Keates  v.  Cadogan,  2  Eng.,  318,  Jervis,  C.  J.,  say- 
ino-  that  in  Hill  v.  Gray  there  was  '^positive  aggressive"  deceit.  "Not  removing 
the  delusion  might  be  equivalent  to  an  express  misrepresentation-"  The  case 
of  Brown  v.  Montgomery,  20  N.  Y.  (6  Smith),  287,  seems  to  be  in  point.  The 
Court  of  Appeals  there  decided  that  it  is  a  fraudulent  suppression  avoiding  the 
sale  of  commercial  paper,  for  the  vendor  to  withhold  information  that  the  makers' 
check  upon  the  bank  in  which  they  kept  tlieir  account,  had  been  protested, 
thou"-h  the  vendor's  informant  accompanied  his  statement  with  the  expression 
of  his  opinion  that  the  makers  were  perfectly  solvent.  A  distinction  is  taken 
between  the  case  under  consideration  and  that  of  Nichols  v.  Pinner  (18  N.  Y., 
295).  "The  cases  are  essentiallj^  different.  There  we  decided  that  where  a 
merchant,  knowing  himself  to  be  insolvent,  purchases  goods  without  disclosing 
the  fact,  there  being  no  inquiry  made,  he  is  not  necessarily  guilty  of  fraud,  as 
he  may  honestly  believe  that  he  may  go  on  and  retrieve  his  affairs.  Where 
so  much  of  the  trade  of  the  country  is  conducted  without  invested  capital,  or 
on  borrowed  capital,  it  must  often  happen  that  a  merchant  who  is  ultimately 
successftil,  has  known  periods  of  commercial  disaster  when  his  property  would 
not  pay  his  debts.  It  would  be  too  strict  to  hold,  that,  under  such  circum- 
stances, he  must,  in  all  cases,  go  into  liquidation,  or  expose  himself  to  probable 
bankruptcy  by  disclosing  his  condition.  But  the  case  does  not  countenance  the 
position,  that  a  dealer  who  has  been  of  known  standing,  but  who  has  suddenly 
failed  in  business,  can  go  to  those  who  are  acquainted  with  his  former  charac- 
ter, but  who  have  not  heard  of  his  failure,  and  innocently  purchase  their  prop- 
erty on  credit." 


FKAUD.  341 

§  679.  (3)  Sometimes  the  obligation  to  disclose  arises 
from  the  character  of  the  contract  itself.  For  there  are 
certain  contracts  which  are  said  to  be  uherrlmcefidei  .•"  ?.  e., 
they  are  contracts  which,  from  their  natnre,  demand  a  fnll 
disclosure  of  all  material  facts  by  the  one  contracting  party 
to  the  other :  such  are  contracts  for  marine  insurance,  and 
contracts  for  the  formation  of  a  partnership.  In  these  cases 
silence  maj^  be  fraud.  (^)  So  again,  in  the  case  of  the  con- 
tract between  a  company  and  a  person  taking  shares,  the 
courts  have  held  that  there  is  an  obligation  to  disclose 
material  circumstances.  (/) 

In  the  case  of  a  contract  for  the  sale  of  a  chattel  having 
a  latent  defect,  there  exists  an  obligation  to  disclose  that 
defect.  0) 

§  6SO.  (4)  Sometimes  the  obligation  to  disclose  arises 
from  the  course  of  the  negotiation  itself. 

It  is  evident  that  the  making  of  one  statement  during  a 
negotiation  may  create  an  obligation  to  make  another :  so, 
if  in  the  course  of  a  negotiation  A.  make  a  statement  to  B. 
which  is  false  in  fact  and  which  A.  subsequently  discovers 
to  be  false,  he  is  under  an  obligation  to  state  that  discovery; 
or  if  A.  make  a  statement  to  B.  which  at  the  time  is  true 
but  in  the  course  of  the  negotiations  becomes  false,  A. 
becomes  under  an  obligation  to  state  that  change  of  fact  to 

"When,"  said  Lord  Blackburn,  addressing  the  House  of 
Lords,  "a  statement  or  representation  has  been  made  in  the 
honafide  belief  that  it  is  true,  and  the  party  who  has  made 
it  afterwards  comes  to  find  out  that  it  is  untrue,  and  dis- 
covers what  he  should  have  said,  he  can  no  longer  honestly 
keep  up  that  silence  on  the  subject  after  that  has  come  to 
his  knoAvledge,  thereby  allowing  the  other  party  to  go  on, 
and  still  worse  inducing  him  to  go  on,  upon  a  statement 
which  was  honestly  made  at  the  time  when  it  was  made,  but 
which  he  has  not  now  retracted  when  he  has  become  aware 
that  it  can  be  no  longer  honestly  persevered  in.  That  would 
be  fraud  too,  I  should  say,  as  at  present  advised.    And  I  go 

{K\  See  per  Lord  Blackburn  In  Brownlle  v.  Arkwright  vjfewbold, 29  W.  R.  455,  revers- 

Carapben;  5  A  pp.  C,  954.  ing  S.  C,  '28  W.  B_.  ?2!?;  ^^,^  J-,<  ^>^'^-  „. 

(J)  New  Brunswick,  etc..  Co.v.  Muggerklge,  (./ )  Horsla  1  v.  Thomas,  1  Hurl.  &  Colt.,  90. 

1  Dr.  &  Sm..  363;    Central  Railway  Co.  of  (A)  Reynell  v.  Sprye,  1  De  G  M   &  (^^,  660, 

Venezuela  V.  Ki6ch,L.  R.  2  H.  L.,  99;  Hend-  703;  Traill  v.  Baring,  4  De  t..  J.  &  S.,ol!<,329. 
erson  v.  Lacon,  L.  R.  5  Eq  ,  249.    Consider 


342        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

on  furtlier  still  to  say,  what  is,  perhaps,  not  quite  so  clear, 
but  certainly  it  is  my  opinion,  where  there  is  a  duty  or  obli- 
gation to  speak,  and  a  man  in  breach  of  that  dutj^  or  obliga- 
tion holds  his  tongue  and  does  not  speak,  and  does  not  say 
the  thing  he  was  bound  to  say,  if  that  was  done  with  the 
intention  of  inducing  the  other  party  to  act  upon  the  belief 
that  the  reason  why  he  did  not  sj^eak  was  because  he  had 
nothing  to  say,  I  should  be  inclined  myself  to  hold  that  that 
was  fraud  also.'"(Z) 

§  681.  Again,  entire  silence  can  hardly  deceive:  but  an 
imperfect  statement  may  be  a  perfect  untruth.  For  in- 
stance, if  the  owners  of  a  business,  desiring  to  sell  it  to  a 
company,  put  out  a  prospectus  containing  various  state- 
ments, each  in  itself  correct,  but  keep  silence  on  a  material 
fact,  it  would  seem  well  worthy  of  consideration  whether 
these  persons  who  were  under  no  antecedent  obligation  to 
make  any  statement  have  not,  by  sajang  something,  assumed 
an  obligation  to  tell  not  only  the  truth  but  the  whole  truth,  (m) 
So  where  a  proposed  creditor  describes  a  transaction  to  the 
proposed  sureties,  the  description  may  be  evidenced  of  a 
representation  that  there  is  nothing  in  the  transaction  that 
might  not  naturally  be  expected  to  take  place  between  the 
parties  to  the  transaction  described. (7i) 

§  689.  (5)  Further,  it  must,  to  prevent  confusion,  be  ob- 
served that  there  are  obligations  to  disclosure  which  arise 
from  the  contract  itself  :  as,  for  example,  the  obligation  on 
a  vender  of  real  estate  honestly  to  disclose  his  title.  This 
is  a  duty  arising  out  of,  and  subsequent  to  the  contract,  and 
the  non-performance  of  this  duty  cannot  constitute  frrlud 
dans  locum  contractu,!.  With  these  we  are  not  at  present 
concerned. 

§  683.  (6)  Lastly,  an  obligation  to  disclosure  may  arise 
from  statute.  The  88th  section  of  the  companies  act,  1867 
(30  and  31.  Vict.,  c.  131), (o)  provides  that  "Every  prospectus 
of  a  company,  and  every  notice  inviting  jDersons  to  subscribe 
for  shares  in  any  joint-stock  company,  shall  specify  the 
dates  and  the  names  of  the  parties  to  any  contract  entered 
into  by  the  company  or  the  promoters,  directors,  or  trus- 

(0  In  Brownlie  Y.Campbell, 5  App  C.,950.  (o)  This  section,  iinfl  the  cases  under  it, 

(m)  Consider  Peek  v.  Gurney ,  L.  R.  6  H.  L.,  are  discussed  in  Buckley  on  the  Companies' 

377.  Acts  (3i  ed  ),  455  et  seq. 
(n)  Lee  v.  Jones,  17  C.  B.  (N.  S.),  482,  503. 


FRAUD.  343 

tees  thereof,  before  the  issue  of  such  prospectus  or  notice, 
whether  subject  to  adoption  by  the  directors  or  the  com- 
pany, or  otherwise ;  and  any  prospectus  or  notice  not  speci- 
fying the  same  shall  be  deemed  fraudulent  on  the  part  of 
the  promoters,  directors,  and  officers  of  the  company  know- 
ingly issuing  the  same,  as  regards  any  person  taking  shares 
in  the  company  on  the  faith  of  such  prospectus,  unless  he 
shall  have  had  notice  of  such  contract." 

§  684,  But  it  has  never  (it  is  believed)  been  held  by  our 
courts  that  there  is  any  general  obligation  to  disclosure  on 
the  part  of  a  vendor  or  purchaser  of  chattels  or  realty, 
though  the  person  maintaining  silence  may  know  that  the 
other  party  is  acting  under  an  erroneous  impression.  '  '■Aliud 
est  celare^  aliud  tacere :  neque  enim  id  est  celare  quicquid 
reticeas.''\'p) 

It  has  been  justly  observed,  by  Mr.  W.  W.  Story, (5')  that 
"it  is  the  general  policy  of  the  law,  in  order  to  induce  vig- 
ilance and  caution  and  thereby  to  prevent  those  opportuni- 
ties of  deceit  which  lead  to  litigation,  to  throw  upon  every 
man  the  responsibilities  of  his  own  contracts,  and  to  bur- 
den him  with  the  consequences  of  his  careless  mistakes." 
"I  am  not  aware,"  said  Lord  Chelmsford,  addressing  the 
House  of  Lords  in  the  case  of  Peek  v.  CTurney,(r)  "of  any 
case  in  which  an  action  at  law  has  been  maintained  against 
a  person  for  an  alleged  deceit,  charging  merely  his  conceal- 
ment of  a  material  fact  which  he  was  morally  but  not  legally 
bound  to  disclose."  The  case  of  Keates  v.  The  Earl  of  Cado- 
gan,(5)  is  an  authority  for  the  proposition  that  there  is  no 
obligation  on  a  proposed  lessor  of  a  house  in  a  ruinous  and 
unsafe  condition  to  inform  the  proposed  lessee  of  its  state. 
In  Horsfall  v.  Thomas,  (^)  it  was  decided  that  the  vendor  of 
a  chattel  is  under  no  obligation  to  disclose  a  patent  defect. 
In  Smith  v.  Hughes, (?/)  the  court  of  Queen's  Bench  deter- 
mined that  the  passive  acquiescence  of  the  seller  of  chattels 
in  the  self  deception  of  the  buyer  does  not  entitle  the  latter 
to  avoid  the  contract.     Lastly,  in  Edwards-Wood  v.  Mar- 

{v-\  Cicero  De  Oflf.  Lib.  iii,  c.  13.    Cicero  vdis  must,  it  is  conceived,  import  not  only 

continues:  "Se.1  cum, quod  tuscias,  id  iguo-  will  but  some   act   consequent   thereupon, 

rare  emolumenti  tui  causa  vclis  eos,  (luorum  See  supra,  §  6.b,  'lO'e  1. 

Intersil   id    scire"    The  passage  has  been  (?)  Law  of  Contracts  (.)the(l.),  8  b44. 

culd  by  Lord  Mansneld  in  Carter  v.  Boehm  (r)  L,  R.  G  H    L..  39u ;  and  .ee  page  403. 

(3  Bur.,  191(1),  and  by  Knight  Bruce,  L.  J  ,  in  (»•)  IOC.  B-.  591. 

Nelthorpe  v.  Holgate  (1  Coll.,  iil).    If  the  W  ^  ^  *  Uolt ,  00._ 

wholeis  to  express  the  principles  of  our  law,  {«)  L.  U.  b  y.  «..  •).».. 


344        FRY  ON  SPECIFIC  PEKFORMANCE  OF  CONTRACTS. 

joribanks,(r)  a  contract  was  made  for  the  sale  of  an  advow- 
son,  nothing  being  said  or  asked  as  to  the  income  of  the 
living,  which  was  in  fact  snbject  to  a  charge  in  favor  of  the 
Governors  of  Queen  Anne's  bounty,  for  repayment  of  a  sum 
borrowed  from  them  to  rebuild  the  parsonage ;  the  pur- 
chaser filed  his  bill  for  specific  performance  with  compensa- 
tion, but  got  a  decree  only  for  specific  performance  without 
compensation  ;  and  from  this  he  ineffectually  appealed,  first 
to  the  Lords  Justices,  and  lastly  to  the  House  of  Lords. 

§  685.  Again,  as  regards  the  purchaser,  he  is  not  under 
an  obligation  to  communicate  any  circumstance  which  may 
enhance  the  value  of  the  thing  bought  by  him.  So  that,  for 
instance,  a  man  knowing  of  the  existence  of  a  mine  under 
an  estate  may  validly  deal  with  the  owner  who  is  ignorant 
of  this  fact,  without  any  communication  of  it.(io)  And  so 
where  a  first  mortgagee,  with  power  of  sale,  having  entered 
into  an  arrangement  not  amounting  to  a  binding  contract 
for  the  advantageous  sale  of  part  of  the  mortgaged  prop- 
erty, afterwards  bought  ux)  at  a  reduced  price  the  interest 
of  the  second  mortgagee  without  informing  him  of  the  ar- 
rangements for  sale,  a  bill  to  set  aside  the  sale  by  the  second 
mortgagee,  on  the  ground  of  the  suppression  of  information 
by  the  purchaser,  was  dismissed  by  Lord  Romilly,  M.  R., 
and  subsequently  by  Lord  Cranworth.  {x)  Nor  is  the  pur- 
chaser liable  to  an  action  for  deceit  for  misrepresenting  the 
seller's  chance  of  sale,  or  the  probability  of  his  getting  a 
better  j)rice  than  that  offered.  (2/) 

§  686.  The  case  is,  however,  quite  different  when,  in  ad- 
dition to  silence,  something  is  done  by  the  one  party  to  con- 
ceal from  the  other  some  fact  material  to  that  other  party. 
Thus,  where  a  wall  which  required  to  be  maintained  against 
the  Thames  was  industriously  concealed,  a  bill  for  specific 
performance  was  dismissed,  though  without  costs.  (^)' 

So,  again,  where  collieiy  owners  entered  into  a  contract 

{V)  1  GIff.,384;  3  De  G.  &  J.. 329;  7  H.  L.  C,       (x)  Dolman  v.  Nokee,  22  Beav  ,  402. 
806.    See,  also,  Haywood  v.  Cope,  25  Beav.,       (y)  Vernon  v.  Keys,  12  East,  632 
140.  (»)  Shirley  v.   Stratton,  1  IJro.  C.  C,  440. 

(w)  Fox  V.  Mackreth,  2  Bro.  C.  C,  400,  420;  Dietinguish  Cook  v.  Waugh,  2  Giff ,  201. 
cf.  Walters  v.  Morgan,  3  De  G.  F.  &  J.,  723. 

'  Margraft  v.  Muir,  57  N.  Y.,  155;  Mank  v.  Patcbin,  42  id.,  167;  Pumpelly 
V.  Phelps,  40  id.,  60;  Bu.sh  v.  Cole,  28  id.,  201;  Taylor  v.  Merrill,  55  111.,  52; 
Fish  V.  Leser,  69  id.,  394. 


FRAUD.  345 

for  tlie  purchase  of  a  farm  adjoining  their  colliery  not  only 
withont  disclosing,  bnt  (it  would  seem)  studiously  conceal- 
ing the  fact,  of  which  the  vendors  were  at  the  time  wholly 
ignorant,  that  they  (the  purchasers)  had  wrongfully  taken 
2,000  tons  of  coal  from  under  the  farm,  the  court  dismissed 
with  costs  the  purchasers'  bill  for  specific  performance  of 
the  contract,  and  ordered  it  to  be  delivered  uj^  to  the  ven- 
dors for  cancellation.  («)  And  where  A.  agreed  to  sell  his 
land  to  B.  at  a  half -penny  per  square  yard,  which  amounted 
to  about  £500,  when  the  real  value  was  £'2,000,  and  the  de- 
fendant asked  the  attorney  whom  he  employed  to  calculate 
the  amount  before  the  contract  was  signed,  not  to  tell  the 
plaintiff  how  small  it  was,  the  court  granted  an  interlocu- 
tory injunction  against  the  deceiver  to  stay  proceedings  at 
law,(&)  In  Hill  v.  Gray,(c)  the  plaintiff  had  employed  an 
agent  to  sell  a  picture,  and  the  defendant  bought  it  under 
the  belief  that  it  had  belonged  to  a  third  x)erson.  Tlie  case 
has  sometimes  been  thought  to  support  the  proposition  that 
mere  silence  may  be  fraudulent.  But  in  Keates  v.  Earl  of 
Cadogan,((^)  Jervis,  C.  J.,  pointed  out  that  the  case  really 
turned  on  the  "aggressive  deceit"  on  the  part  of  the  agent 
of  the  seller ;  and  if  the  case  cannot  be  sui:)ported  on  tliis 
ground  it  seems  not  to  be  law.(e) 

Even  as  regards  a  sale  with  all  faults,  the  industrious  and 
active  concealment  of  faults  would  be  fraudulent. (/') 

§  687.  So,  though  the  purchaser  may  keep  silence  as  to 
the  advantages  of  the  estate,  he  must  not  make  any  false 
representation  as  to  it,  or  go  any  farther  than  silence.  "A 
very  little,"  said  Lord  Eldon,  "is  sufficient  to  affect  the 
application  of  that  principle.  If  a  word,  if  a  single  word, 
be  dropped  which  tends  to  mislead  the  vendor,  that  i)riiici- 
ple  will  not  be  allowed  to  operate."  Accordingly,  in  the 
case  before  his  Lordship,  the  purchaser  having  made  such 
suggestions  of  what  was  not  true,  the  contract  was  set 
aside  :(.^)  and  in  a  case  where  a  solicitoi-  bought  of  a  jierson 
in  difficulties  who  was  selling  without  professional  advice, 
and  untruly  represented  the  nature  and  title  of  the  prop- 

(n)  Fothergill  v.  Phillips,  L.  R.  6  Ch,,770.  (/)  BaRlehole  v.  Walters,  3  Camp.,   154; 

(b)  Deane  v.  Raetron,  Anetr  ,  64.  Schneider  v.  Heath,  i<l  ,  5(10. 

(c)  1  Stark.,  434.  (v)  lumer  v.  Harvey,  Jac.,  ICfl,  ITS;  and 
(f/)  IOC.  B.,5'J1.  "^  "  "  "■"  '"  '■'■  °"  '  "'^" 
(e)  See  per  I.ord  Chelmsford  in  Peek  v 

Gurcey,  L.  R.  6H.,  391. 


see  Walters  v  Morjran.  .T  De  G.  F.  &  J.,  723, 
724;  Davis  v.  Cooper,  5  My.  &  Cr.,  270. 


346         FRY  ox  SPECIFIC  PEIIFOUMANCE  OF  CONTRACTS. 

erty  as  sucli  that  no  one  but  a  professional  man  would  pur- 
chase it,  specific  performance  was  refused. (7/ )' 

§  688.  It  must  be  observed  that  it  is  possible  that  silence 
which  would  not  constitute  fraud  may  yet  constitute  such 
unfairness  in  a  contract  as  to  stay  the  hand  of  the  court. 
The  case  of  Ellard  v.  Lord  Llandaff,(0  if  it  is  to  be  sup- 
X)orted  on  tlie  ground  of  the  silence  of  the  lessee  as  to  the 
fact  that  one  of  the  lives  in  the  surrendered  lease  was,  at  the 
time  of  signing  the  contract,  in  extremis,  rests  upon  this 
principle ;  and  was  so  put  by  Lord  Manners  in  deciding 

it.(.y) 

§  689.  The  employment  of  a  puffer  at  auctions  is  in  some 
circumstances  regarded  as  fraud,  which  will  prevent  the  en- 

(h)  Davis  V.  Abraham,  5  W.  R.,  465.    Cf.        fi)  1  Ball  &  B.,  241. 
Summers  v  Uriflith,  35  Beav.,  27.  {J)  tiee,  also,  supra,  §  383. 

'  But  in  Bowman  v.  Bates,  2  Bibb.,  47,  A.  discovered  a  salt  spring  on  B.'s 
land,  and  purchased  the  land  at  the  ordinary  price,  concealing  the  fact  of  the 
discovery.  Held,  that  the  contract  should  be  rescinded.  In  Drake  v  Collins, 
5  How.  (Miss.),  253,  however,  where  property  sold  low,  on  execution,  it  being 
supposed  to  be  the  subject  of  a  prior  mortgage,  when  the  fact  that  it  was  not 
might  have  been  easily  "ascertained,  it  was  held  that  the  mere  fact  that  the  pur- 
chaser knew  to  the  contrary  was  not  ground  to  set  aside  the  sale.  Livingston 
v.  Peru  Iron  Co  ,  2  Paige,  390,  is  an  authority  in  accordance  with  the  English 
decisions,  as  given  in  the  text.  In  this  case,  Walworth,  Ch  ,  in  delivering  the 
opinion  of  the  court,  said,  that  although  it  had  been  held  that  the  suppression 
of  a  material  fact,  by  either  party  to  the  contract,  was  suflScient  for  an  avoid- 
ance of  the  contract  (Perkins  v.  M'Gavock,  Cook's  Rep.,  417),  that  the  courts 
of  New  York  had  never  gone  that  length;  although  "  very  slight  circumstances 
in  addition  to  the  intentional  concealment  of  a  fact,  have  been  considered  suffi- 
cient to  constitute  a  fraud  upon  the  other  party."  In  the  case  before  him — 
which  was  thi.s — the  vendee  applied  to  the  vendor,  to  purchase  a  lot  of  wild  land, 
and  represented  to  him  that  it  was  worth  nothing,  except  for  the  purpose  of 
sheep  pasture,  when  he  knew  that  there  was  a  valuable  mine  on  the  lot,  of  the 
existence  of  which  the  vendor  was  ignorant — he  decided  that  there  was  such 
fraud  as  would  avoid  the  purchase.  See  the  cases  of  Wendell  v.  Fo.sdick,  13 
Johns. 's  liep.,  325;  Weller  v.  C^olden,  id.,  395,  and  Turner  v.  Harvey,  Jacob's 
Rep.,  178,  cited  in  the  course  of  the  chancellor's  opinion.  At  law.  although 
the  principles  which  must  govern  the  conduct  of  the  vendor,  are  at  exact  vari- 
ance with  those  of  equity  (Pars.  Contr.,  vol.  1,  p.  461),  those  which  relate  to  the 
acts  of  the  vendee,  or  purchaser,  seem  to  be  in  perfect  unison  with  them.  The 
leading  case  on  the  subject  is  .said  to  be  Laidlow  v.  Organ,  2  Wheat.,  178 
(Pars.  Contr.,  vol.  1,  p.  4(31).  The  facts  were  these:  One  Shepherd,  interested 
with  Organ,  and  in  treaty  with  Girault,  a  member  of  the  firm  of  Laidlow  & 
Co.,  at  New  Orleans,  for  a  quantity  of  tobacco,  had  secretly  received  intelli- 
gence over  night  of  the  peace  of  1815,  between  England  and  the  United  States, 
which  raised  the  value  from  thirty  to  fifty  per  cent.  Organ  called  on  Girault 
on  Sunday  morning,  a  little  after  sunrise,' and  was  asked  if  there  was  any  news 
by  which  the  price  of  tobacco  might  be  enhanced;  but  there  was  no  evidence 
that  Organ  had  asserted,  or  suggested,  anything  to  induce  a  belief  that  such 
news  did  not  exist;  and  under  the  circumstances  the  bargain  was  struck.  INIar- 
.shall,  C.  -J.,  delivered  the  opinion  of  the  court,  to  the  effect  that  the  buyer  was 
not  bound  to  communicate  intelligence  of  extrinsic  circumstances,  which  might 
influence  the  price,  though  it  were  exclusively  in  his  possession;  and  that  it 
would  be  dlflicult  to  circumscribe  the  contrary  doctrine  within  proper  limits, 
where  the  means  of  intelligence  are  equally  accessible  to  both  parties. 


FRAUD.  347 

forcement  of  the  contract  made  at  the  auction.  The  cases 
prior  to  the  recent  legislation  seem  to  fall  under  three  heads, 
which  it  will  be  desirable  to  discriminate. 

§  690.  (1)  Where  the  sale  is  announced  to  be  without 
reserve,  this  excludes  any  interference  on  the  part  of  the 
vendor  which  can,  under  any  possible  circumstances,  affect 
the  right  of  the  highest  bidder  to  have  the  property  knocked 
down  to  him,  and  that  without  reference  to  the  amount  to 
which  the  highest  bidding  shall  go.(^-)  Therefore  the  em- 
ployment by  the  vender  in  such  a  sale  of  one  or  more  per- 
sons to  keep  up  the  price  on  his  behalf  amounts  to  fraud  in 
the  contemplation  of  the  court,  (Z)  and  is  a  bar  to  specific 
performance.  (7?i)  Where  the  vendors,  assignees  of  an  in- 
solvent, put  up  his  life-interest  in  certain  pro]Derty  for  sale 
by  auction  without  reserve,  having  previously  entered  into 
an  arrangement  with  a  person  whose  wife  was  interested  in 
remainder,  that  he  should  bid  £35,000  and  be  the  purchaser, 
unless  a  higher  sum  should  be  bid,  and  this  fact  was  con- 
cealed, it  was  held  to  taint  the  sale  to  the  defendant  at  the 
auction,  though  he  purchased  for  £49,800. {ny 

§  691.  The  statement  that  a  sale  is  without  reserve  may, 
of  course,  be  modified  by  other  statements,  as  in  one  case 
of  a  sale  under  the  court,  where  it  was  stated  that  the  sale 
was  without  reserve,  but  that  all  parties  to  the  suit  had  lib- 
erty to  bid  :  and  the  court  of  appeal  in  chancery  held  that 
the  result  of  the  two  statements,  though  not  very  consistent, 
was  such  that  the  purchaser  could  not  complain. (o) 

§  692.  (2)  Where  there  is  no  declaration  that  the  sale  is 
without  reserve,  and  no  right  of  bidding  is  expressly  re- 
served to  the  vendor,  and  he  employs  one  person  to  prevent 
the  property  going  at  an  undervalue  ;  this  has  been  thought 
not  to  be  fraud  in  the  contemplation  of  a  court  of  equity, (7?) 
though  it  clearly  was  in  that  of  the  courts  of  common  law.((/) 

{k)  Per  Lord  Cottenham  in  Robinson  v.  (»0  Robinson  v.  Wall,  10  Beav.,  61 ;  S.  C  ,  2 

Wall,  2  Ph  .375.  Ph  ,  372. 

{I)  Thornett  v.   Haines,  15  M.  &  W.,  307,  (n)  Dimmock  v.  Qallett.  T.  R.  •>  Ch.,  21. 

where  the  earlier  cases  are  cited.  (/>)  Smith  v.  Clarke,  12  Vca.,  477;  Wood- 
Cm)  Meadows  V.  Tanner,  5  Mad,  34.    As  to  ward  v.  Miller,'2  C.dl.,  27it;  Flint  v.  Woodin, 

an  intending  purchaser  buying  off  hidders,  9  Ha.tilS;  Braniley  v.  Alt.  3  Ves,  620. 

see  Heffer  v.  Martvn,  15  W.  K.,390;  3(>  L  J.  (?)  Per  Lord  Wensleydale  in  Thornett  v. 

Ch.,372,  and  cf.  Ke  Carew's  Lstate,  2tj  Beav.,  Haines,  15  M.  A  \V.,  372;  Crowder  v.  Austin, 

187.  3  Bing.,  3(JS. 

'  See  Morehead  v.  Hunt,  1  Dev.  Ch.,  65;  Hinde  v.  Pcudleton,  AVytlif,  144. 


348        FRY  ON  SPECIFIC  1>EKF0K.MANCE  OF  CONTRACTS. 

The  distinction,  however,  was  disapproved  of,  if  not  doubted, 
by  Lord  Cranworth  in  the  case  of  Mortimer  v.  Bell.(r)' 

J;  693.  Inasmuch  as  a  contract,  if  originally  void  by  the 
common  law,  ought  not  to  be  enforced  by  equity,  the  de- 
fendant in  a  suit  in  the  court  of  chancery  for  specific  per- 
formance might  avail  himself  of  the  defense  furnished  by 
this  fraud  at  law,  and  that  formerly  by  means  of  a  trial  of 
the  question  at  law.(.S') 

Jj  694.  (3)  Even  in  the  absence  of  any  declaration  that 
the  sale  is  without  reserve,  the  employment  of  two  or  more 
persons  as  puffers  has  in  all  courts  been  considered  fraudu- 
lent, inasmuch  as  only  one  person  can  be  necessary  to  pro- 
tect the  property,  and  the  employment  of  more  can  only  be 
to  enhance  the  price.  (/) 

§  695.  The  decision  in  the  case  of  Mortimer  v.  Bell  above 
mentioned  led  to  the  passing  of  an  act  of  Parliament  (the 

(r)  L.  R.  1  Ch.,  10.    See  infra,  §§  695,  696.       Haines,  15  M.  &  W.,  372.    See,  also.  Rex  v. 
(s)  Woodward  v.  Miller,  2  Coll  .  279  Marsh,  3  Y.  &  J.,  331;  Bramley  v.  Alt,  3\e8., 

It)  Per  Lord  Wensleydale  in  Thornett  v.    620. 


'  But  in  Woods  v.  Hall,  1  Dev.  Ch.,  411,  where  a  person  interested  in  land 
sold  at  auction,  employed  another  to  bid  for  hira,  and  represented  the  bid  made, 
by  such  person  as  made  on  his  own  account,  the  sale  was  held  to  be  fraudulent 
and  was  set  aside.  According  to  the  early  English  decisions,  the  employment 
of  puffers,  by  an  owner,  to  bid  for  him  at  auction,  was  a  fraud  upon  the  real 
bidders.  He  could  not  enhance  the  price  by  a  person  privately  employed  by 
him  for  that  purpose;  but  if  he  were  unwilling  that  his  goods  should  be  sold  at 
an  imder  price,  he  might  order  them  to  be  set  up  at  his  own  price,  and  not 
lower,  or  he  might  previously  declare,  as  a  condition  of  the  sale,  that  he  re- 
served a  bid  for  himself.  Bexwell  v.  Christie,  Cowp..  ;395:  Howard  v.  Castle, 
G  T.  R.,  642.  And  this  doctrine  seems  to  be  approved  in  2  Kent,  538,  539  (5th 
ed.),  and  1  Story's  Ei[.  Jur.,  §  293.  It  has  been  adopted,  also,  in  later  English 
cases.  Crowder  v.  Austin,  2  Car.  &  P..  2(i8;  Wheeler  v.  Collier,  1  Mood.  <k 
Walk.,  123:  Fuller  v.  Abraham,  3  Brod.  &  B.,  116:  S.  C,  6  :Moore,  316  There 
are  other  cases,  however,  which  have  admitted  a  qualification  of  this  doctrine. 
Among  these  is  that  of  the  text  and  Steele  v.  Ellmaker,  11  S.  &  R,  8(i.  Ithas 
been  decided  in  several  American  cases,  that  contract  by  which  one  party  stipu- 
lated not  to  bid  against  another  at  an  auction  sale,  or  an  agreement  by  one 
to  bid  for  the  benefit  of  himself  and  the  other  party  were  contrary  to  public 
policy,  and  a  fraud  on  the  vendor.  James  v.  Caswell,  3  John.'s  Cas.,  29 :  Doolin 
V.  Ward,  6  John.,  194:  Wilbur  v.  Howe.  8  id  ,  444:  Thompson  v.  Davies.  13 
id.,  112;'Dudley  v.  Little,2Ham.,505;  Picatt  v.  Oliver,  1  McLean,  295;  Gulick 
v.  Ward,  5  Halst.,  87.  According  to  other  decisions,  the  validity  of  such  agree- 
ment is  made  to  turn  on  the  gtw  animo,  and  they  will  be  valid  if  made  bona  fide 
for  the  sole  purpose  of  preventing  a  sacrifice  of  the  property  Wolfe  v.  Luy- 
ster,  1  Hall.  146;  Jenkins  v.  Hogg,  2  Const.  (S.  C),  821 ;  Smith  v.  Greenlee,  2 
Dev.,  120;  Small  v.  Jones,  1  Watts  &  Serg  ,  128;  Phippes  v.  Stickncy,  3  Mete, 
384,  where  the  subject  is  discu.ssed  with  clearness  and  the  authorities  are  care- 
fully examined.  But  an  association  of  bidders  with  a  design  to  stifle  competi- 
tion, is  a  fraud  upon  the  vendor.  Smith  v.  Greenlee,  2  Dev.,  12G;  See,  also, 
Morehead  v.  Hunt,  1  Badg.  ct  Dev.  Eq.,35;  :\[oncrief  v.  Goldsborough,  4  Harr. 
&  :M'Hen.,  281;  Troughton  v.  Johnstone,  2  Hayw.,  328;  note  in  Bramley  v. 
Alt  (Sumn.  ed.),  3  Ves.,  620. 


FRAl'D.  349 

30  and  31  Yict.,  c.  48),  which  was  introduced  by  Lord  St. 
Leonards.  , 

The  4th  section  of  this  act,  enacts  that,  after  tlie  passing 
of  the  act,  whenever  a  sale  by  auction  of  land  would  l)e  in- 
valid at  law  by  reason  of  the  employment  of  a  puffer,  the 
same  shall  be  deemed  invalid  in  equity  as  well  as  at  law. 

Land  is  defined  to  include  hereditaments  of  whatever 
tenure :  but  the  difference  of  the  view  of  the  courts  of  com- 
mon law  and  equity  as  to  fraud  in  auctions  of  chattels  (if 
such  difference  exist)  is  left  in  its  pristine  vigor. 

§  696.  The  5tli  section  of  the  act  enacts  that  the  particu- 
lars or  conditions  of  sale  by  auction  of  any  land  shall  state, 
(a)  whether  such  land  will  be  sold  without  reserve,  or  (b) 
subject  to  a  reserved  price,  or  (c)  whether  a  right  to  bid  is 
reserved :  and 

(a)  If  the  land  be  sold  without  reserve,  it  is  not  lawful  for 
the  seller  to  employ  any  person  to  bid  at  such  sale,  or  for 
the  auctioneer  to  take  knowingly  any  bidding  from  any 
such  person. 

(b)  In  the  event  of  the  land  being  sold  subject  to  a  re- 
served i)rice  the  act  is  silent,  but  it  has  been  held  that  in  the 
absence  of  express  stipulation,  it  is  not  lawful  to  employ 
any  person  to  bid  up  to  the  reserved  'pvice.{u) 

But  (c)  in  the  event  of  a  reservation  of  a  right  to  the  seller 
to  bid,  it  is  lawful  for  him  or  for  any  one  person  on  his  be- 
half to  bid  at  such  auction  in  such  manner  as  he  may  think 
proper  (§  6).{v) 

§  697.  As  with  regard  to  misrepresentation,  so  A^th  re- 
gard to  fraud  in  general,  delicate  questions  arise  where  the 
fraud  alleged  is  that  of  the  agent  jDracticed  on  third  persons, 
and  the  principal  is  sued  on  the  ground  of  deceit  or  for  re- 
scission by  reason  of  such  fraud.  (?o)  But  in  actions  for 
specific  performance  these  questions  cannot  arise.  If  the 
principal  of  the  fraudulent  agent  were  the  plaintiff,  he 
would  not  be  at  liberty  to  avail  himself  of  that  agency  in 
part  and  repudiate  it  in  the  rest  of  the  transaction :  to  such 
a  case  the  well-established  piinciple  of  equity  that  innocent 
parties  cannot  derive  benefits  from  the  fraud  of  others  {x) 
would  apply.     If,  on  the  other  hand,  the  fraud  were  that  of 

(M)  Gilliat  V.  Gilllat,  L.  R.  9Eq..60.  (.r)  Brldgman  v.  Green,  Wilm.  Sot.,  M; 

(v)  See  Parfltt  V.  Jepson,  46  L.  J.  C.  P.,  529.    Hueuenin  v.  Baseley,  U  Ves.,  2S0:  Nicol's 
(w)  See  supra,  §  636.  Case,  3  De  G.  &  J.,  387,  43S. 


350        FRY  ON  SPECIFIC  PERFOKMANCE  OF  CONTRACTS. 

the  defendant's  agent,  the  plaintiff  by  sning  on  the  contract 
would  have  waived  the  fraud  and  ratified  the  contract. 

§  698.  A  particular  class  of  cases  arising  from  the  agency 
of  directors,  and  the  fact  that  corporations  are  incapable  of 
l^ersonal  fraud,  has  occujiied  much  attention  in  the  courts 
of  late  years,  and  has  evoked  a  considerable  variation  of 
opinion  amongst  the  learned  judges. (?/)  But  the  question 
can  hardly  arise  in  cases  of  specific  performance  for  the 
reason  indicated  in  the  last  preceding  section. 

sj  609.  Will  the  fraudulent  act  of  a  mnre  stranger,  to 
which  the  plaintiff  was  neither  party  nor  privy,  deprive 
him  of  his  right  to  enforce  the  performance  of  a  contract? 
The  question  has  never,  it  is  believed,  been  judicially  ans- 
wered. But  upon  the  general  equitable  princi^^le  that  no 
person,  though  innocent,  can  derive  a  benefit  from  the  fraud 
of  another,  the  contract  if  resting  absolutely  in  fieri  could 
not  be  enforced.  If  the  plaintiff  were  an  assign  for  value  of 
the  contract,  or  if  the  contract  were  partly  performed,  the 
conclusion  might  probably  be  different. (2) 

§  700.  The  effect  of  fraud  on  the  contract  tainted  by  it 
extends  to  the  entirety  of  the  contract,  though  the  fraud 
may  only  have  arisen  or  been  jDracticed  as  regards  one  term 
or  one  part  of  that  contract.  Hence  the  party  guilty  of  the 
fraud  cannot  enforce  the  contract  to  any  extent  even  though 
he  may  waive  the  part  affected  by  the  fraud. 

§  701.  The  same  results  follow  from  misrepresentation, 
even  though  innocent. 

In  a  case  where  there  was  a  misrepresentation  which  the 
judge  considered  not  to  have  been  willful,  but  to  have  arisen, 
from  misunderstanding  as  to  the  surrender  of  a  lease  on  part 
of  the  property  which  was  to  be  exchanged,  and  the  plain- 
tiff offered  to  take  the  land  subject  to  the  lease,  and  thus, 
as  he  contended,  to  abide  by  the  contract,  exonerated  from 
what  was  affected  by  the  misrepresentation ;  so  that  the 
question  distinctly  arose  wiiether  the  misrepresentation 
avoided  the  contract  in  toto  or  only  quoad  lioc  ;  Plumer,  M. 
R.,  said,  "there  is  no  authority  anywhere,  no  case  where 

(2/)  Ranger  V  Oreat  Western  Railway  Co.,  Case,  3  De  G.  &  J.,  387;  Western  Bank  of 

5  H.  L  C,  72;  Burnes  v.  Pennell,  2  id.,  497;  Scotland  v.  Addie,  L.  U.  1  H.  L.  Sc,  145; 

New  Brunswick  and  Canada  Railway,  etc.,  Mackay  v.  Commercial  Bank  of  New  Bruns- 

Co.  v.Conybeare.7id  ,711(S  C.,4Glff  ,339;  1  wick,  L.  R  5  P.O.,  394;  Swire  v.  Francis,  3 

De  G  F.  &  J.,  5781 ;  National  Exchange  Co.  App.  C,  106. 

of  Glasgow  V.  Drew,  2  Macq  ,  103;  Nicol's  («)  Consider  Cobbett  v.  Brock,  20  Bea v.,  524. 


FRAUD.  3.-)! 

the  court  lias,  when  misrepresentation  was  the  ground  of  a 
contract,  decreed  the  specific  perfoimance  of  it ;  and  notli- 
ing  would  be  more  dangerous  than  to  entertain  such  a  juris- 
diction. The  principle  on  which  performance  of  an  agree- 
ment is  compelled,  requires  that  it  must  be  clear  of  the 
imputation  of  any  deception.  The  conduct  of  the  i:)erson 
seeking  it  must  be  free  from  all  blame  :  misrepresentation, 
even  as  to  a  small  part  only,  prevents  him  from  apphing 
here  for  relief.  The  reason  of  this  is  obvious  :  if  it  be  so 
obtained,  the  contract  is  void  both  at  law  and  in  equity. 
When  an  agreement  has  been  obtained  by  fraud,  is  the 
effect  to  alter  it  partially,  to  cut  it  down  or  modify  it  only  i 
No  ;  it  vitiates  it  hi  toto  ;  and  the  party  who  has  been  drawn 
in  is  totally  absolved  from  ol)ligation.  If  so,  what  equity 
has  the  other  party  who,  by  his  misconduct,  has  lost  one 
contract,  to  call  on  the  court,  for  his  benefit  to  make  a  new 
one  \  If  the  defendant  were  willing  to  consent  to  it,  and  to 
enter  into  a  new  agreement,  it  would  be  a  different  case ; 
but  if  he  refuses,  if  he  insists  that  he  is  absolved  from  it, 
what  equity  can  there  be  in  favor  of  the  other  ^'(f/) 

§  702.  The  view  that  fraud  operates  on  the  entire  con- 
tract was  adopted  and  approved  by  the  court  of  appeal  in 
chancery  in  Rawlins  v.  Wickliam,(i)  which  was  a  suit  for 
rescission,  where  the  defendant  urged  that  justice  would  be 
done  not  by  rescinding  the  contract  but  by  directing  the 
representation  to  be  made  good  ;  but  the  contention  was  re- 
jected by  Knight  Bruce  and  Turner,  L.  JJ.,  on  the  ground 
that  the  misrepresentation  gave  a  right  to  avoid  the  entire 
contract. 

§  703.  The  effect  of  fraud  on  the  contract  is  two  fold. 
First,  it  renders  the  contract  voidable  at  the  election  of  the 
defrauded  party  ;  secondl}^,  it  operates  as  a  personal  bar  to 
specific  performance.  These  two  effects  are  for  many  pur- 
poses distinguishable ;  for  example,  the  right  to  rescind 
may  be  lost,  and  the  right  to  object  to  specific  performance 
may  remain.  These  two  effects  will  therefore  be  considered 
separately. 

§  704.  The  first  effect  of  fraud  is  to  render  the  whole  con- 
tract voidable,  but  viodable  only.     The  contract  is  not  void  ; 

(o)  Viscount  Clermont  v.  Tasburgh,  1  J.  &    v.  Fanaiua,  etc.,  Mull  Co  ,  L.  U.  2  Q  B.,  580, 
W..  119, 120.  587;  and  cl".  Hart  v.  Swaine,  7  Ch.  i>.,  42,  47. 

(6)  3  De  tJ.  &  J.,  304.    See,  also,  Kennedy 


3;")2      y\i\  ON  M'KriFic  pehfokmance  of  contracts. 

it  is  not  a  imllitv.  ''It  is  now  well  settled,"  said  Lord 
Campbell,  C.  J.,  in  The  Deposit  and  General  Life  Assurance 
Co.  Registered  v.  Ayscougli, (c)  "that  a  contract  tainted  by 
fiMiid  is  nor  void  but  only  voidable  at  the  election  of  the 
parry  defrauded."     It  is  valid  till  disaffirmed  ;  not  void  till 

affirmed.  (<Z) 

ij  705.  From  this  distinction,  many  important  conse- 
quences follow:  it  follows  that  the  defrauding  party  is 
lx)und  until  the  defrauded  party  elect  to  the  contrary,  and 
that  he  can  never  set  up  anV  invalidity  in  the  contract :  it 
follows  that  the  defrauded  party  is  equally  bound,  until  he 
rescind  \(e)  it  follows  that  the  property  the  subiect  of  the 
contract  passes  to  the  purchaser,  Avhether  defrauding  or  de- 
frauded, until  avoidance  ;  it  follows  that  all  mesne  disposi- 
tions by  the  defrauding  party  to  third  persons  not  parties 
or  privies  to  the  fraud  are  valid,  so  that  third  persons  may 
acquire  absolute  interests  and  rights  under  the  fraudulent 
contract ;(/)  and  lastly  it  follows  that  the  defrauded  party 
may,  by  electing  to  be  bound  or  by  losing  his  right  to  re- 
pudiate, l)ecome  absolutely  bound  by  the  contract. 

§  706.  The  right  of  rescinding  a  contract  may,  however, 
be  precluded  or  lost  by  any  one  of  the  following  circum- 
stances, viz.,  (1)  impossibility;  (2)  the  vesting  of  an  interest 
under  the  contract  in  an  innocent  person  which  renders  re- 
scission inequitable  ;  (3)  the  election  of  the  defrauded  party 
to  abide  by  the  contract ;  or  (4),  the  inability  of  the  de- 
frauded party  to  perform  the  obligation  which  rests  upon 
him  to  make  restitution  on  his  part.(^) 

§  707.  (1)  The  recission  has  become  impossible  when  its 
object  is  to  get  back  something  which  is  actually  destroyed, 
as,  e.  g.,  if  A.  sought  to  rescind  a  contract  for  the  sale  of  a 
sheep  to  B.,  which  sheep  B.  had  killed  and  eaten.  (7i) 

The  rescission  would  be  equally  impossible,  but  for  a  legal 
and  not  a  physical  reason,  if  B.  instead  of  killing  the  sheep 
had  sold  it ;  for  the  contract  between  A.  and  B.,  not  being 
void,  vested  the  property  in  B.,  and  consequently  before 
rescission  B.  could  make  a  good  title  to  C,  and  C.  could 

(c)  6E1.&B1.,C71.    See,  also,  Nicol's  Case,        (e)  Deposit  and  General  Life  Assurance 

3  De  G.  &  J.,  :js7,431  ;  Clarke  v.  Dickson,  El.  Co.  Registered  v.  Ayscough,  6  El.  &  Bl.,  761. 
B.  &  E.,  148;  Oakes  v.  Turquand,  L.  R.  2  U.        (/)  Stevenson  v.  Newnham,  13  C.  B.,  285, 

L.,  325, 316;  Urquhart  v.  Macpherson,  3  App.  302. 
C.,  SU.  {g)  See  Clough  v.  London  and  North  West- 

(ti)  See  per  Lord  Cairns  in  Reese  River  ern  Railway  Co  ,  L.  R.  7  Ex.,  26. 
Sliver  Mining  Co.  v.  Smith,  L.  R.  4  H.  L.,  69.       (A)  Pothier,  du  Central  de  Vente,  s.  348. 


FKAVD.  353 

hold  free  from  any  right  of  rescission  in  A.(/)  It  is  too  late 
for  the  defrauded  vendor  to  declare  his  election  to  rescind 
when  the  property  has  passed  from  the  fraudulent  vendee 
to  a  third  person.  (,/) 

§  708.  (2)  The  rescission  is  inequitable  when  third  per- 
sons innocent  of  the  fraud  have  acquired  interests  under 
the  contract,  and  such  innocent  persons  would  consequently 
be  injured  by  its  rescission.  So  in  the  great  case  arising 
out  of  Overend  Gurney  &  Co.'s  failure,  it  was  held  by  the 
House  of  Lords  that  the  person  who  took  shares  by  reason 
of  a  fraudulent  misrepresentation  could  not,  after  a  winding 
up  order,  rescind  this  contract  and  have  his  name  removed 
from  the  list,  because  the  creditors  of  the  company  had  ac- 
quired an  interest  in  the  enforcement  of  the  contract  which, 
as  they  were  innocent,  the  shareholder  could  not  defeat  by 
rescinding.  (A:) 

§  709.  (3)  An  election  to  abide  by  the  contract  will  pre- 
vent its  rescission.  A  person  defrauded  into  making  a  con- 
tract has  but  an  election,  and  an  election  once  determined 
is  determined  for  ever.(?)  Whether  this  election  must  be 
made  within  a  reasonable  time,  or  whether  the  party  enti- 
tled to  elect  may  do  so  at  any  time,  unless  he  has,  in  the 
meanwhile,  lost  that  right  on  some  other  ground — as,  e.  g., 
the  acquisition  of  rights  by  third  parties,  is  a  question  left 
open  by  the  most  recent  case  on  this  subject. (w)  It  is  cer- 
tain, however,  that  in  the  case  of  rescission  for  fraud,  the 
election  once  determined  in  favor  of  the  contract  precludes 
any  subsequent  rescission.  (?i) 

§  710.  In  the  case  of  contracts  to  take  shares  induced 
by  a  misrepresentation  of  the  objects  of  the  comi:>any,  it 
is  now  determined  that  the  date  of  the  allotment  of  the 
shares  is  the  very  latest  date  to  which  the  reasonable  time 
for  election  extends. (o) 

§  711,  The  election  to  abide  by  a  contract  may  be  by  ex- 
press words,  or  may  be  inferred  from  acts  done  with  a 

(i)  Klngsfonl  v.  Alerrv,  11  Ex  ,577;  Load  (7n)  Morrison  v.  Universal  Marine  Iiisur- 

V.  Green,  15  M.  &  W.,  216,  219  ancc  Co.,  I.  R.  S  K.\  .4(1,  I it7,  particularly  2  >6. 

U)  White  V.  Garden,  10  C.  B.,  919.  (n)  Campbell  v.   Flcmiiijf,  1  A.  &  E.,  40; 

(k)  Cakes  v.  Tiir(]uand,  L,.  R.  2  H.  L.  325;  CIoukIi  v.  London  and  North-Western  liail- 

Mixer's  Case,  4  De  G.  &  J.,  575.  waj'  Co.,  L    R.  7  Ex.,  Ji;.    6ee,  also,  Gray  v. 

{I)  Corny n,  Dig.  Election,  c.  2.    Clough  v.  Fowler,  L   R.  8  Kx.,  24'.i. 

London  and  Xorth-Western  Hallway  Co.,  L.  (o)  Oakes  v.  Tur<iuand,  L.  R  2  H.  L.,  325, 

R.  7  Ex.,  26,  34.  and  i)artlcularly  352,  where  the  earlier  cases 

are  considered. 

23 


354        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

knowledge  of  the  invalidity  of  the  contrcact.(;?)     The  elec- 
tion \h  not  necessiirily  formal  or  ejspress. 

As  soon  as  the  fraud  is  discovered  the  right  to  elect  arises ; 
and  if  this  has  been  exercised  by  affirming  the  contract,  the 
subsequent  discovery  of  fresh  incidents  of  the  same  fraud 
•will  not  give  rise  to  a  new  right  to  rescind. (^) 

^71*2.  (4)  The  person  who  seeks  rescission  and  thereby 
restitution  to  his  state  before  the  contract,  must  do  the  like 
on  his  part  and  make  restitution.  ''Restitutio  in  integ- 
rum,'' said  Lord  Cranworth,(r)  "can  only  be  had  where  the 
party  seeking  it  is  able  to  put  those  against  whom  it  is  asked 
in  the  same  situation  in  which  they  stood  when  the  contract 
was  entered  into." 

If,  by  any  act  on  his  part,  done  even  in  ignorance  of  the 
fraud,  the  defrauded  party  has  made  this  impossible,  he 
cannot  obtain  recission  ;(5)  as,  e.  g.,  if  A.  has  by  fraud  been 
induced  to  buy  a  sheep  of  B.  and  seeks  the  repayment  of 
the  money  paid  to  B.,  he  must  offer  to  restore  the  sheep, 
and  if  he  has  himself  killed  the  sheep,  he  cannot  seek  such 
rescission,  (^)  though  he  may  still  maintain  his  action  against 
B.  for  the  fraud  practiced  on  him. 

In  the  case  of  Clarke  v.  Dickson, (i^)  the  plaintiff  sought 
to  rescind  a  contract  for  the  sale  of  shares  in  a  mine,  and 
the  following  facts  were  held  to  be  several  grounds  of  objec- 
tion all  falling  under  this  principle  ;  (1)  that  he  had  held 
the  shares  for  three  years,  and  that  they  were  not  the  same 
shares  at  the  beginning  of  the  time  as  at  the  end  ;  (2)  that 
he  had  received  dividends  ;  (3)  that  he  had  concurred  in  the 
conversion  of  the  concern  from  a  i)artnersliip  on  the  cogt- 
book  principle,  into  a  joint-stock  cori:)oration  ;  and  (4)  that 
at  the  time  of  the  offer  to  restore  the  company  was  being- 
wound  up  and  all  chance  of  profit  was  gone. 

§  71U.  In  a  more  recent  case  in  the  House  of  Lords  the 
plaintiff  complained  of  fraud  in  inducing  a  contract  on  his 
part  to  take  shares  in  an  unincorporated  banking  companj?^ : 

(/))  Per  T.or'l  hynflhurst  in  Attwood  v.  Nicol's  Case,  3  De  G.  &  J.,  .387,  431;  Great 
Small.G  (Jl.  &Fin.,432;  Macbryflev.Wetkes,  Liixemljourp  Railway  Co.  v.  AlaKniiy,  25 
K  Beav.,  .W3.  Coinyn,  Uijc.  Election,  c.  1.  lieav,.i!-6,  Thi»  case,  so  far  as  It  determined 
Clough  V.  London  and  North-Wcalern  Rail-  that  the  plaiutifl's  had  lost  their  remedies  be- 
way  Co.,  L.  U.  7  Ex,  20;  Morrison  v.  Uni-  skIcs  rescission,  seems  bad  law.  see  Kimber 
Tcrsal  Marine  Ins.  Co..  L.  R  8  Ex.,  )97,  2U3  v.  IJaiber,  L.  R.  8  Ch.,  ."jG 

(7)  Campbell  v.  Fleming,  1  A.  &  E.,  40.  (m)  El.  B.  &   E  ,  14S     See,   too,  Sheffield 

(r)  In  Western  Hank  ot  Scotland  v.  Addle,  Kicbel  Co.  v   Unwin,  2  Q  B.  L).,  214,  223;  Ur- 

L.  R.  1  n.  L.  So  ,1G4.  qiihart  v.  Macpherson,  3  App.  C,  831;  and 

(»)  S.  C.,  ICG.  consider  Maturinv.  Trtdennick,  12  W.  R.,740. 

(t>  See  Clarke  v.  Dickson,  El.  B.  &  El ,  14S. 


FRAUD.  355 

and  the  circumstances  that  tlie  phiintift' liad  in  ifjiiorance  of 
the  fraud  taken  i^art  in  proceedings  to  convert  this  company 
into  an  incorporated  company,  and  that  the  company  was 
in  course  of  winding  up,  were  held  ta  preclude  tlie  i)hiintitf 
from  rescission.  Lord  Cranwortli  thought  that  the  former 
circumstance  would  of  itself  have  been  sufficient. (i') 

§  714.  The  receipt  of  dividends  before  discovery  of  the 
fraud  was  relied  upon  in  the  case  of  Clarke  v.  Dickson/;?^) 
as  precluding  rescission  ;  and  there  are  other  authorities  to 
show  that,  at  common  law,  tlie  reception  of  any  benefit 
under  a  contract  will  preclude  its  rescission  for  default  of 
performance  by  the  other  party.(^)  But  it  is  submitted 
that  no  such  rule  prevails  where  the  rescission  is  on  the 
ground  of  fraud,  and  that  where  a  benefit  has  been  received 
and  is  capable  of  restoration  eitheir  in  kind  or  by  way  of 
compensation,  and  the  defrauded  party  offers  such  restora- 
tion, he  has  not  lost  his  right  to  rescind. 

For  to  return  to  the  illustration  of  the  sheep  : — if,  before 
the  discovery  of  the  fraud,  A.  has  sheared  the  sheep,  it  ap- 
pears reasonable  to  hold  that  such  change  in  the  condition 
of  the  sheep  will  not  dei^rive  A.  of  his  right  to  rescind,  if  he 
offer  to  restore  the  sheep  and  account  for  the  wool. 

So,  in  Earl  Beanchanip  v.  Winn,(//)  the  House  of  Lords 
held  that  the  construction  of  a  warx^ing- drain  and  the  in- 
closure  of  a  common  would  not  have  prevented  the  rescis- 
sion of  a  contract  for  the  sale  of  the  land  on  the  ground  of 
mistake  :  and  in  The  Lindsay  Petroleum  Co.  v.  Hurd  {z)  the 
privy  council  took  the  same  view  of  the  facts  that  possession 
had  been  taken  under  the  contract  and  a  trial  well  sunken. 
In  that  case  the  court  below  had  offered  an  account  of  the 
profit  of  the  well,  if  any,  which  was  not  accepted. 

§  713.  In  the  rule  as  above  stated, (a)  the  act  precluding 
restoration  is  referred  to  the  party  bound  to  restore.  Is  it 
essential  that  it  should  be  by  his  act,  or  is  it  enough  that 
even  by  another's  act  the  restoration  is  impossible  i  To  re- 
turn once  more  to  the  sheep.  Can  the  defrauded  2>nrcliaser 
claim  to  rescind  tliough  the  sheep  have  died  by  the  act  of 

(v)  Western  Bank  cpf  Scotland  v.  AtUllc,  L.  (z)  L.  R.  5  P.  C,  ^il    See,  a?so,  per  Cromp- 

JR.  1  H.  L.  Sc,  14.5.  ton,  J  ,  In  Deposit  anil  General  l.tfe  .\bsur- 

(w)  El  B  &  K  ,  14S  ance  Co.  Keglsteied  v.  Avscough,  C  El.  jc  Bl. 

(a;)  Hunt  V.  Silk,  5  East,  449;  Blackburn  V.  701. 

■Smith,  2  Ex.,  7S:^  («)  Supra.  §  7lO. 

(«/)  L.  E.  G  H.  L.,  223,  232. 


350        FHY  ox  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

God  ?  Tlie  point  seems  to  have  never  been  decided.  On  the 
one  side  there  are  cases  in  which  are  found  general  state- 
ments of  the  law  wliicli  imply  that  the  impossibility  of 
restoration  from  whatever  cause  is  a  bar  to  rescission,  (ft) 
And  it  may  be  open  to  question  whether  any  real  distinction 
can  be  drawn  between  the  innocent  act  of  the  defrauded 
paity  Avhich  precludes  him  from  restoration,  and  the  act  of 
God*  or  of  a  third  person,  leading  to  a  similar  result.  On 
the  other  side  is  the  language  of  Crompton,  J.,  in  Clarke  v. 
Dickson, (r)  that  "  the  true  doctrine  is  that  a  party  can  never 
repudiate  a  contract  after,  by  his  own  act,  it  has  become  out 
of  his  power  to  restore  the  parties  to  their  original  condi- 
tion." 

§  716.  As  our  law  is  far  from  clear  on  this  point  it  may 
be  useful  to  refer  to  the  principles  of  French  law  as  ex- 
pounded by  Pothier.(fZ)  According  to  him,  an  action  for 
rescission  was  not  precluded  by  the  change  or  destruction 
of  the  thing  sold  If  the  destruction  took  place  without 
the  act  of  the  plaintiff,  he  was  not  bound  to  do  more  than 
he  could.  If  the  horse  had  died,  the  plaintiff  must  give 
back  his  skin  ;  if  the  cow  sold  had  died  of  a  contagious  dis- 
ease, and  been  buried,  he  need  return  nothing.  If,  on  the 
other  hand,  the  change  or  destruction  was  due  to  the  act  of 
the  plaintiff,  he  was  bound  to  account  to  the  defendant  for 
the  value  of  the  thing  but  did  not  lose  his  action. 

§  717.  The  right  to  rescind  does  not  arise  from  an  inno- 
cent misrepresentation,  unless  it  be  such  as  to  show  there 
is  a  complete  difference  in  substance  between  what  was 
supposed  to  be  and  what  was  taken  so  as  to  constitute  a 
failure  of  consideration,  (e)  * 

§  71 8.  It  must  not  be  assumed  that  in  every  case  in  which 
the  right  of  rescission  is  lost,  every  other  remedy  in  respect 
of  the  transaction  is  lost  also.  This  is  not  the  case.  Thus, 
a  person  induced  to  take  shares  by  fraud  may  have  lost  the 
right  of  rescinding  the  contract,  but  may  yet  sue  the  de- 
ceiver for  indemnity  against  the  loss  resulting  from  the  con- 
tract. (/)    A  principal  authorizes  an  agent  to  buy  shares  at 

(6)  Hunt  V.  Silk,  5  East,  449;  Blackburn  v.  (0)  Traite  du  Contrat  de  Vente,  §§  220-223. 

Smith,  2  Ex.,  783.  («)  Kennedy  v.  Panama,  etc.,  Mail  Co  ,  L. 

(c)  El.  B.  &  E.,  1,5.5,  approved  in  P.  C.  Urqu-  R.  2  Q.  B.,  58'J;  Torrance  v.  Bolton,  L.  R.  8 

hart  V.  Macpherson,  3  App.  C.  P31.    See,  too,  Ch.,  118.    Cf.  Brett  v.  Clowser,  5  C.  P.  D.,376. 

Sheffleld  Nickel  Co.  v.  Unwin,  2  Q.  B.  D.,  214,  (/)  Peek  v.  Gurney,  L.  R.  C  H.  L.,  377. 
223. 


FRAUD,  357 

£3  per  share  on  the  agent's  representation  that  he  ran  pro- 
cure tliem  for  that  price  :  the  agent  has,  in  fact,  just  bouglit 
them  for  £2  a  share  ;  the  principal  having  sold  the  shares 
before  the  discover}^  of  the  fraud  cannot  rescind  the  con- 
tract, but  may  sue  the  agent  for  the  difference  between  £3 
and  £2  -per  share.  (<7) 

§  719.  The  second  effect  of  fraud  on  the  contract  is  this: 
it  "operates,"  as  expressed  by  Lord  Lyndhurst,  "as  a  per- 
sonal bar  to  the  relief. (70  This  is  an  operation  independent 
of  the  rescission  of  the  contract ;  and  though  there  can  be 
no  doubt  that,  where  the  defrauded  party  has  elected  to  be 
bound  by  the  contract,  he  has  also  waived  the  right  to  insist 
on  the  personal  bar  ;  it  does  not  follow  that  he  has  also  lost 
the  right  to  set  up  that  bar  where  rescission  has  become  im- 
possible from  the  interests  of  third  persons,  or  from  the 
impossibility  of  restitution  arising  either  from  the  act  of 
God  or  of  third  persons  or  from  his  own  act  before  knowl- 
edge of  the  fraud.  In  all  these  cases,  it  is  conceived  that 
the  defendant  might  still  urge  the  fraud  as  a  bar  to  specific 
performance — just  as  at  common  law  he  might,  after  having 
lost  his  right  to  rescind  in  any  of  the  Avays  last  indicated, 
maintain  an  action  of  deceit  against  the  defrauding  party. (z) 

An  innocent  misrepresentation  may,  as  well  as  a  fraudu- 
lent one,  constitute  a  personal  bar  to  relief.  (,/) 

§  720.  Where  it  ai)pears  that  the  execution  of  a  contract 
in  the  manner  insisted  on  by  the  plaintiff  will  result  in  a 
fraud  upon  the  public,  the  court  will  not  enforce  the  per- 
formance of  the  defendant's  part  of  the  contract.  Thus,  in 
a  case  where  the  plaintiffs  sought  to  compel  the  defendant 
to  perform  an  alleged  contract  by  him  to  edit  a  guide-book 
with  a  title-page,  stating  it  to  be  the  work  of  K.  (a  well- 
known  editor  of  such  books),  who,  in  fact,  had  nothing  to  do 
with  it ;  it  was  held,  that  the  defendant  was  jiistilied  in  stay- 
ing his  hand  and  breaking  off  the  delivery  of  '-copy  "'  of  his 
manuscript,  on  the  ground  that  such  a  title-page  was  en  leu- 
la  ted  to  deceive  the  public. (A*)' 

(g)  Kiniber  v.  Rarbcr,  L.  K.  8  Cb.,  fC  (./>  flermont  v.  Taslnrgh.  1  J.  X-  W.,  11-2.  ' 

(A)  Jn  Mania  v.  Keinbl.',  5  Bli   (N.  S  ).  75'.        ik>  Po-t  v   Marsh,  l(i  Cli.  I)  ,  39o.    Ct.  Old- 
(i)   Clarke  v.  Dickt-on,  El.  B.  &  E.,  l^S.  ham  v.  James,  15  Ir  Cli   U  ,  SI. 


'  Parol  proof  to  inraJulnie  written  contract  in  case  offrnvd.]     The  operation  of 
a  deed  or  other  written  contract,  complete  and  intelligible  in  itself,  will  be  cou- 


358        FRY  ox  SrECIFIC  PPZKFOKMAIS^CE  OF  CONTRACTS. 

trdlli'd  by  parol  evidence,  -ohere  fraud  is  allecrcd  and  proved.  Where  a  party 
applii'S  to  a  court  of  equity  for  the  cnforcemeut  of  a  written  contract,  the  ad- 
verse partv  is  entitled  to  show  that  the  instrument  never  contained  the  true 
contract  between  the  parties.  Nelson  v.  "Wood,  02  Ala..  IT-l;  Rearich  v. fiwine- 
beart.  11  Pa   St.,  233;  Atlantic  Delaine  Co.  v.  James,  i  Otto,  207. 

Friinduleni  uae  of  a  wriUcn  inxtrumenf  ]  "It  is  enough  tliat,  though  the 
parties  acted  in  mutual  good  faith  at  the  inception  of  the  transaction,  an  at- 
tempt is  made  to  invest  the  instrument  to  a  different  purpose  not  contemplated, 
or  to  use  it  in  violation  of  the  accompanying  agreement.  It  is  as  much  a  fraud 
to  obtain  a  paper  for  one  purpose,  and  "to  use  it  for  a  different  and  unfair  pur- 
pose, as  to  practice  falsehood  or  deceit  in  its  procurement.  The  primary  hon- 
esty of  purjiose  but  adds  to  the  moral  terpitude  of  the  subsequent  efforts  to 
escape  from  it;  or,  when  moral  guilt  cannot  be  imputed,  a  legal  delinquency 
attaches  upon  an  attempted  abuse  of  the  writing,  sufficient  to  subject  it  to  the 
influence  of  the  oral  evidence."  Bell,  J.  in  Rearich  v.  Swineheart,  11  Pa. 
St..  '233;  see,  also.  Parks  v.  Chadwick,  8  Watts  &,  Serg.,  9G;  Archer  v.  McCray, 
59  Ga.,  54'».  "All  the  cases  show  that,  to  pave  the  way  for  the  reception  of 
oral  declarations,  it  is  not  necessary  to  prove  that  a  part}'  was  actuated  by  a 
fraudulent  intention  at  the  time  of  the  execution  of  the  writing.  His  original 
object  may  have  been  j^erfectly  honest  and  upright:  but  if.  to  procure  an  unfair 
advantage  to  himself,  he  subsequently  deny  a  parol  qualification  of  the  written 
contract^  it  is  such  a  fraud  as  will,  under  the  rules,  operate  to  let  in  evidence  of 
the  real  intent  and  tinal  conclusion  of  the  contractors."  Per  curiam,  in  Ren- 
sham  v.  Gauz,  7  Pa.  St.,  117;  Murrv  v.  Duke.  40  Cal.,  044;  see,  also.  Neal  v. 
Speigle.  33  Ark..  03;  Young  v.  Peadiey,  2  xltk.,  2')();  Campbell  v.  McClana- 
chan.  0  Serg.  <k  Rawle.  172;  Lvon  v.  Huntington  "Bank.  14  id.,  2^3:  Oliver  v. 
Rowland.  4  Rawle.  141;  Hultz  v.  Wriicht.  10' Serg.  &  Rawle,  34o;  Thompson 
V.  White.  1  Dallas,  424;  Archer  v.  McCray,  59  Ga^  540. 

Fra  11(1  as  1o  third  person's  riglits  ]  ' '  Where  once  a  fraud  has  been  committed, 
not  only  is  the  person  who  has  committed  the  fraud  precluded  from  deriving 
any  benefit  from  it,  but  every  other  person  is  so  likewise,  unless  there  has  been 
.some  consideration  moving  from  himself  If  there  has  been  consideration 
moving  from  a  third  person,  and  he  was  ignorant  of  the  fraud,  such  third  per- 
son stands  in  the  ordinary  condition  of  a  purchaser  without  notice.  But  wiiere 
there  has  been  no  consideration  moving  from  himself,  a  third  person,  however 
innocent,  can  derive  no  sort  of  benefit  or  advantage  from  the  transaction." 
Wood  (V.  C).  in  Scofield  v.  Templer,  Johns.,  150;  Berry  v.  Whitney,  40 
Mich.,  65. 

Gro!<!<  inadequacii  of  consideration  jnai^  he  evidence  of  fraud.']  Gwynne  v.  Heaton, 
1  Bro.  C.  C,  !^:  Janes  v.  :Morgan.  1  Lev.,  Ill  ;  Butter  v.  Haskell,  4  Dessau. 's 
Eq..  651:  Havirarth.  v.  Wearing,  L.  R.,  12  Eq..  320;  Osgood  v.  Franklin,  2 
John.'s  Cii.,  i;  Gilford  v.  Thorn.  9  N.  J.  Eq.,  7u2:  CoffeeV  RutBn,  4  Coldw., 
507:  Judi,n_-  v  Wilkins,  19  Ala.,  705;  Warner  v.  Daniels,  1  Woodb.  &  TMinot, 
90;  Byers  v.  Surget,  19  How.,  303;  Wrisht  v.  Wilson,  2  Yerg.,  294;  Hardi- 
man  v.  Rurge,  10  id.,  202;  Morris  v.  Phillibar,  30  Mo.,  145;  Defvderich  v.  Wat- 
kins,  8  Humph.,  520. 

FniHd  ax  ar/ain-st  creditors.]  "  Distributees  have  no  right  whatever  to  inter- 
meddle with  the  personal  estate  of  the  deceased,  for  an_v  other  purpose  than  to 
do  such  acts  as  may  be  necessary  to  preserve  it  until  an  administrator  can  be 
appointed  Any  other  acts  of  control  by  any  person,  constitute  him  an  execu- 
tor de  Kon  tort,  and  subject  him  as  a  p  naltv  to  the  payment  of  the  debts  of  the 
deceased  When,  therefore,  this  bill  shows' that  the  ch'ildren  of  William  Simons, 
Sr.,  instead  of  subjecting  this  property  to  the  payment  of  his  just  debts  in  a 
due  course  of  administration,  made  an  agreement  that  no  administration  .should 
betaken;  that  they  would  wholly  disregard  the  rights  of  creditors,  and  treat 
the  property  as  their  own,  it  shows  an  agreement  which  a  court  of  equity  can- 
not enforce.  It  is  not  based  on  any  equitable  rights  of  the  parties.  It  is  a 
violation  of  the  common  law.  It  tends  to  defraud  creditors.  It  is  plainly  for- 
bidden by  pul)lic  policy."  Curtis.  J.,  in  Allen  v.  Simons,  1  Curtis,  122";  Mc- 
Kewan  v.  Sanderson.  L.  R..  20  Eq  ,  65;  Forsyth  v.  Clark.  3  Wend..  637;  Bird 
V.  Aiken,  1  Rice's  Ch.,  73;  Clemens  v.  Davis,  7  Pa.  St.,  263;  Thornton  v. 
Davenport,  1  Scam.,  296. 


FRAUD.  359 

Fraud  as  edi(lenc^:d  by  vohintary  conveyance  1  "Upon  a  full  examination  of 
all  the  cases,  the  legal  priucipal  appears  to  be  established,  that  when  a  volun- 
tary conveyance  is  made  and  received  with  an  actual  intent  to  defraud  the  then 
existing  creditors  of  tlie  grantors,  it  is  not  a  6o/h<  _/?(/<' conveyance  which  caa 
protect  the  grantee  against  the  claims  of  subsequent  creditors."  This  is  the 
rule  as  laid  down  by  Walworth,  Ch..  in  Kings  v.  Wilcox,  1 1  Paige's  Ch..  589. 
In  Day  v.  Cooley,  118  Mass.,  524,  Morton,  J.,  said:  "It  is  well-settled  that  if 
a  debtor  makes  a  conveyance  with  the  purpose  of  defrauding  either  existing 
or  future  creditors,  it  mav  be  impeached  by  either  class  of  creditors."  Shand 
V.  Hauley,  71  N.  Y.,  ;519f  Case  v.  Phelps,  ^9  id.,  1G4;  Dewey  v.  Moyer,  72  id., 
70;  Cole  v.  Tyler,  Go  id.,  78;  Curtis  v.  Fox,  47  id.,  300. 

Defense  of  bona  fide  pnrchiner  without  itotice.'\  In  order  that  the  defense  of  a 
bona  fide  purchaser,  without  notice,  may  be  perfect,  such  purchaser  must  have 
paid  in  full  before  notice  of  the  vendor's  fraud.  Florence  Sewing  Machine  Co. 
v.  Ziegler,  58  Ala.;  221.  Stone,  J.,  said  in  this  case:  "  We  do  not  sanction  the 
extreme  doctrine  that  a  purchaser,  no  matter  how  innocent  he  may  be,  acquires 
no  rights  against  a  latent  equity  until  he  pays,  in  full,  and  receives  a  convey- 
ance. We  hold  that  he  acquires  an  equity  jj/'o  ^a/t^>  to  the  extent  he  pays  be- 
fore notice." 

Fraud  maybe  waived,  and  how?'}  Where  a  part}' has  been  defrauded  in  a 
contract,  he  may  waive  the  fraud  and  adopt  the  contract.  He  may  do  .so  by 
positive  act,  or  his  conduct  mav  show  that  he  acquiesces.  VernolV.  Vernol, 
63  N.  Y..  45;  Atwood  v.  SmaU,  (i  CI.  vfc  Fin.,  4Hi;  MacBrvde  v.  Weeks,  23 
Beav.,  533;  Doughertv  v  Douahertv.  3  Halst.'s  Ch.,  627;  .Moffatt  v.  Winslow, 
7  Paige's  Ch.,  12'4;  Cfawiey  v.^Timberlake,  2  Ired.'s  Eq.,  460. 

Voluntary  CO II ceya nee  in  fraud  of  creditors.']  Where  a  conveyance  of  prop- 
erty is  made  in  trust  for  the  use  of  the  party  making  the  transfer,  it  is  void  as 
against  creditors.  Where  the  transfer  is  of  all  the  property  belonging  to  the 
debtor,  the  grant  is  conclusive  evidence  of  fraud  as  to  indebtedness  then  exi.st- 
ing.  A  grantee  in  a  voluntary  conveyance  does  not  occupy  the  position  of  a 
bona  fide  purchaser  for  value,  that  he  is  innocent  of  fraudulent  intent,  will  not 
protect  his  title.     Young -v.  Hermans,  66  X.  Y.,  3^2;  see  cases  cited. 

Equity  will  reliere  against  a  judgment  on  the  ground  of  fraud]  A  gross  exag- 
eration  of  value,  knowingly  and  willfully  made  in  the  absence  of  the'  adverse 
party,  would  be  sufficient  evidence  of  fraud  to  invalidate  the  assessment  of 
damages.  Jordan  v.  Volkening.  72  X.  Y.,  30ii;  Hunt  v.  Hunt.  72  id.,  217:  St  ,1e 
of  Michigan  v  Ph(enix  Bank,  33  id.,  9.  Kent,  Ch  .  said  in  Foster  v.  Wood,  6 
John.'s  Ch.,  87,  "that  chancerv  would  not  relieve  ayainst  a  judgment  at  law 
on  the  ground  of  its  being  contrary  to  equity,  imless  the  defendant  in  the  judg- 
ment was  ignorant  of  the  fact  in  question  pending  the  suit,  or  it  wo\ild  have 
been  received  as  a  defense,  or  unless  he  was  prevented  from  availing  himself  of 
the  defense  by  fraud  or  accident  unmixed  with  negligence  or  f;,ult  on  his  part.' 

Fraud  of  a  paity  irho  assumes  to  act  for  a  third  per--on.]  Equity  will  deprive 
a  party  of  the  benefit  he  may  have  derived  from  his  own  fraud,  iuiposiiion  or 
undue  influence,  by  jireventing  acts  intended  to  be  done  for  the  lienetit  of  a 
third  person  Story's  Eq.  Jur.,  ^  25''';  Shadda  v.  Sawyer,  4  McLean,  181; 
Bellamy  V  Sabine.  2  Phil..  425;  Hunter  v.  Griffin,  19  111.,  251;  Johnson  v. 
Coun,  22  Wis.,  329. 

"In  cases  rf  fraud,  equiy  will  sometimes  imply  a  trust,  and  treat  the  perpetrator 
of  the  fraud  as  a  trustee  t.v  maUficio  for  the  purpo.se  of  administering  a  remedy 
against  the  fraud,  and  in  such  a  case  the  fraud  gives  the  jurisdiction"  Earl.  J., 
in  Wheeler  v.  Keynolds,  66  N.  Y.,  227:  see.  also.  Anthony  v.  Leltwick,  3  l{and., 
238;  Jackson  v.  Gray.  9  Geo.,  77;  Ambuchou  v.  Bender.  44  .Mo.,  -Mu;  Menden- 
hall  v  Treadwav,  44  Ind.,  131;  Aldridge  v.  Dana,  7  Blackf  ,  249;  Dugan  v. 
Vattier,  3  id.,  245. 


■Mn      KKV  ox  ji'i;iU''U'  i'i;i:i-oi:mance  of  contuacts. 


CHAPTER  XV. 

OF    MISTAKI5. 

^  7*JI.  There  being"  two  parties  to  every  contract,  it  fol- 
lows that  mistake  may  be :  1st,  the  mistake  of  the  defendant 
ak)ne  ;  or  2ndly,  the  common  mistake  of  both  plaintiff  and 
defendant ;  or  8rdly.  the  mistake  of  the  plaintiff  alone. 
Tlie  first  and  second  species  will  reqnire  discussion,  as 
grounds  of  defense  to  an  action  for  specific  performance  ; 
the  second  and  third  will  both  raise  the  question  how  far  • 
the  iilaintiff  may  enfor«e  performance  with  a  correction  of 
the  error.  It  will  be  necessary  to  consider  mistake  not  only 
as  a  defense  to  a  specific  performance,  but,  also,  to  some 
extent  as  giving  a  phiintiff  a  right  to  a  rescission  or  rectifica- 
tion of  the  contract  ' 

1  Misttike  IS  ihiix  defined  hj/ Mr.  Kerr}  "Some  unintentional  act,  omission, 
or  (>rror,  arisiui;  from  unconsciousness,  ignorance,  forgetfullness,  imposition  or 
mis])laccd  confidence."  Kerr  on  Fraud  and  Mis.,  396.  Equity  relieves  against 
a  mistake,  as  well  as  against  fraud,  In  a  deed  or  contract  In  writing;  and  parol 
evidence  is  admissil)le  to  prove  tlie  mistake,  though  It  Is  denied  in  the  answer; 
and  this,  either  Avhere  the  plamtilfs  seeks  relief  aflhmatively,  on  the  ground  of 
the  mistake,  or  where  the  defendant  sets  it  up  as  a  defense  to  rehut  an  equity. 
And,  it  seems,  that  a  party  may  show  a  mistake  in  an  agreement  of  which  he 
seeks  the  specitic  performance.  Gillis])ie  v.  Moon.  2  John's  Ch.,  i5«o;  see, 
also,  llutton  v.  Edgerton,  (5  S.  C  ,  4^");  Hayne's  Outlines  of  P^q.,  182;  Mason 
V.  Armitage.  13  Yes.,  20;  .Jeremy's  Eq.  Jur.,  book  3.  9t.  2,  p.  3r)8.  "The 
English  courts  have  repeatedly  expres.scd  a  strong  inclination  not  to  decide  in 
favor  of  plaintitT's  .'seeking;  not  to  .set  aside  the  agreement,  but  to  enforce  it, 
when  it  is  reformed  by  parol  evidence.  They  aflirm  that  the  difference  of 
right  and  condition  as"  to  the  plaintiff  and  defendant,  relating  to  evidence 
offered  for  tlie  jjurjiose  of  olitaining  a  decree  or  resisting  It,  exists  in  the  code 
of  every  civilized  nation.  The  ground  of  the  distinction  is  this:  when  a  party 
has  entered  into  a  written  agreement,  and  seeks,  as  plaintiff",  a  specitic  perform- 
ance of  it,  he  must  rely  on  the  agreement  as  it  stands.  He  can  neither  add  to, 
vary,  or  exi)luin  any  of  its  terms  by  parol  proof.  If  he  cannot  enforce  the 
true  contract,  he  still  retains  all  he  was  ever  in  po.s.session  of.  lie  may  suffer 
di.sappointment,  which,  as  the  consequence  of  his  want  of  caution  and  explicit- 
ness,  he  must  bear.  But  not  so  with  the  defendant.  He  might  encounter  not 
di.sappointment  Dniy.  Imt  sustain  ruinous  loss,  if  compelled  .specifically  to  exe- 
cute an  agreement  different  from  that  which  he  contemplated."  Lumpkin,  J., 
in  Rogers  v.  Atkin.son,  1  Kelly,  12;  .see.  also,  Peterson  v.  Grover,  10  Me.,  363; 
Bellows  v.  Stone.  U  N.  H..  17o.  Lord  Eidon  .said  in  Marquis  of  Townshend  v. 
Stangroom,  6  Yes  ,  32s :  "  It  cannot  be  said  that  Ixcause  the  legal  import  of  a 
■written  agreement  cannot  be  varied  by  parol  evidence  intended  to  give  it  an- 
other sense,  therefore,  in  equity,  when  once  the  Courtis  in  possession  of  the 
legal  sense,  there  is  nothing  more  for  it  to  iiKpiire  into.     All  the  doctrine  of  the 


OF   MISTAKE.  361 

§  722.  Mistake  may  be  of  sncli  a  character  as,  in  the  view 
of  a  jjiirely  common  law  court,  to  avoid  tlie  contract  on  the 
ground  of  want  of  consent  or  of  total  failure  of  considera- 
tion, (r/)  But  equity  does  not  confine  the  defense  of  mistake 
to  these  cases.  The  principle  upon  which  it  proceeds  is 
this : — that  there  must  he  a  contract  legally  binding,  but 
that  this  is  not  enougli — ^that  to  entitle  the  plaintilf  to  more 
than  his  common  law  remedy,  the  contract  n)us-t  be  more 
than  merely  legal.  It  must  not  be  hard  or  unconscionable  : 
it  must  be  free  from  fraud,  from  surpi'ise.  and  from  mistake  : 
for  where  there  is  mistake,  there  is  not  that  consent  v/hich 
is  essential  to  a  contract  in  equity  :  non  mdentur  qui  errant 
consent  i  re. {hy 

§  723.  In  some  cases,  mistake  furnishes  an  absolute  bar 
to  specific  performance :  in  other  cases  it  affords  no  such 
gi-ound,  if  the  plaintiff  be  willing  to  nuike  a  reasonable  com- 
pensation to  the  dt-feudant  for  the  mistake  made  :  whether 
a  given  case  falls  within  one  or  other  of  these  categories  de- 
pends on  all  its  circumstances. (c) 

§  724.  Again,  the  Statute  of  Frauds  has  not  affected  the 
situation  of  a  defendant  against  whom  specific  performance 
is  sought, (fZ)  and  it,  therefore,  leaves  it  open  to  him  to  pro- 
duce any  evidence  for  his  purpose,  which  is  not  to  establish 
a  contract,  but  to  rebut  an  equity  which  the  i^laintift'  insists 
has  arisen  out  of  a  contract. 

(a)  Raffl-s  V.  n-ichelhaus,  2  H.  &  C  ,  9<6;  v.  Winter  Cr.  &  Ph  ,  57,  62;  McKeiizie  v. 
KenneMv  v.  Panama,  etc.,  .Mall  Co.,  L.  U.  2    Uesketh,  7  Ch.  D..  67.5 

Q  B.,  580.  (rf)  Per  Grant,  M.  IC,  In  Clarke  v    Grant, 

(b)  DU  Lib.  50.  tit   17,  t.  116.  U  Ves.,  519 

(c)  Loudon  and  Birmingham  Railway  Co. 

courts  as  to  cases  of  uuconscioua1)le  agreements,  hard  agreements,  agreements 
entered  into  by  mistake  or  .surprise,  wliicli  the  court  will  not  execute,  must  be 
struck  out.  if  it  is  true  tliat  because  parol  evidence  .should  not  be  admitted  at 
law.  therefore  it  shall  not  he  admitted  in  ecjuity  upon  the  question  whether,  ad- 
mitting the  agreeuient  to  be  such  as  at  law  it  is  .said  to  be.  the  party  shall  have 
a  specific  execution,  or  be  left  to  that  court  in  which  it  is  admitted  parol  evi- 
dence cannot  be  introduced."  Lord  Kedesdale  in  Cliuan  v.  Cooke.  1  Sch.  & 
Lef.,  ;^0,  says:  "No  person  shall  be  charged  with  the  execution  of  an  agree- 
ment who  has  not,  either  by  himself  or  his  agent,  signed  a  written  agreement; 
but  the  statute  does  not  say  that  if  a  written  agreement  is  signed,  the  .same  ex- 
ception shall  not  hold  to  it  that  did  before  the  statute.'" 

'  It  is  a  matter,  of  course,  for  courts  of  equity  to  grant  relief  on  the  ground 
of  mistake.  Chamberlain  v.  Thompson,  10  Conn.,  2-l;3;  Elmore  v.  Austin,  2 
Root,  41)9.  But  in  Massachusetts  the  court  has  no  jurisdiction  in  equity,  in 
cases  found"  d  only  in  mistake.  Gould  v.  Gould,  5  Mete,  'i'A.  And  in  >laine 
this  head  of  jurisdiction  has  been  expressly  conferred  ou  the  court.  Robinson 
V.  Sampson,  S6  Me.,  u^H. 


3G2        FRY  ox  SPECIFIC  PEKFORMAKCE  OF  CONTRACTS. 

^  7*^.5.  The  cases  of  mistake  have,  it  is  true,  seemed  to 
present  rather  iDeculiar  difiiculties  to  the  admission  of  parol 
evidence,  because  it  has  been  argued  that  to  do  so  is  to  over- 
rule the  Statute  of  Frauds  and  to  contradict  the  writing  by 
parol.  Its  admission  is,  liowever,  the  settled  doctrine  of 
tlie  court,  and  that  not  merely  for  purposes  of  defense  to  a 
specitic  performance,  but,  as  we  shall  hereafter  see,  for  the 
purpose  of  correcting  the  mistake.'  The  question  of  its  ad- 
mission by  way  of  defense  was  much  debated  in  the  case  of 
the  Marquis  Townshend  v.  StangToom,(e)  where  Lord  Eldon 
said,  "It  cannot  be  said,  that  because  the  legal  import  of  a 
written  agreement  cannot  be  varied  by  parol  evidence,  in- 
tended to  give  it  another  sense,  therefore,  in  equity,  when 
once  the  court  is  in  possession  of  the  legal  sense,  there  is 
nothing  more  to  inquire  into.  Fraud  is  a  distinct  case,  and 
perhaps  more  examinable  at  law  :  but  all  the  doctrine  of  the 
court  as  to  cases  of  unconscionable  agreements,  hard  agree- 

(«)  6  Ves.,  3-28. 

'  It  is  a  well  established  rule  iu  this  countiy  that  parol  evidence  is  always  ad- 
missible, to  vary  or  explain  written  agreements  founded  in  mistake:  and  this 
notwithstanding  it  is  excluded  by  the  general  laws  of  evidence;  it  is  an  excep- 
tion to  the  prevailing  rule.  Peterson  v.  Grover,  30  Me..  ;5(i3;  Blanchard  v. 
Moore,  4  .J.  J.  MarshT,  471;  Huston  v.  Stable,  id.,  loO:  Anderson  v.  Bacon,  1 
A.  K.  ^lansh.,  48;  Perry  v.  Pearson,  1  Humph.,  481 :  Chamness  v.  Crutchfield, 
2  Ired.  Ch.,  148;  Harrison  v.  Ploward,  1  id..  4u7;  Van  Ness  v.  City  of  Wash- 
ington, 4  Pet.,  3:32;  Gibson  v.  Watts,  1  IMcC.  Ch.,  490;  Goodell  v.  Field,  15 
Verm.,  448.  Though  there  are  cases  of  a  different  purport.  Harris  v.  Dinkius, 
4  Dessau  ,  60;  Wesley  v.  Thomas,  (5  Har  &  ,J.,  34;  Watkins  v.  Stockett,  6  id., 
435;  Sutherland  v.  Crane,  Walk.  Ch.,  533.  But  parol  testimony  of  what  took 
place  immediately  before  the  execution  of  a  written  instrument,  is  inadmissible 
for  the  purpose  of  proving  mistake  in  drawing  the  instrument,  but  not  even  in 
a  clear  case  of  departure  from  instructions  in  drawing  the  instrument,  against 
a  bona  fide  purchaser  for  a  valuable  consideration,  claiming  under  the  instrument 
and  without  notice  of  the  mistake.  Scott  v.  Burton,  2  Ash.,  313.  Parol  evi- 
dence is  inadmissible  to  show  a  mistake  in  law  as  a  ground  for  reforming  a 
written  instrument  founded  on  such  mistake.  Wheaton  v.  Wheaton,  9  Conn., 
00.  Therefore,  where  it  was  stated  in  a  l)ill  in  chancery,  brought  by  A.  against 
B.,  liis  father,  tiial  it  was  agreed  between  the  parties  tliat  A.  should  purchase 
of  B.  a  farm  of  the  value  of  .$4,000,  for  which  A.  should  give  B.  two  promissory 
notes,  one  for  !{;3,()0(l,  payable  on  demand,  with  six  per  cent  interest,  the  other 
for  the  .same  amount,  with  five  per  cent  interest,  payable  at  the  decea.se  of  B., 
and  then  to  be  delivered  up  unpaid  to  A.  as  his  portion  of  B.'s  estate:  and  the 
parties  thereupon  app'ied  to  a  justice  of  the  peace  to  draw  the  writing  neces- 
sary to  carry  such  agreement  into  etfect,  but  by  accident  and  through  their  own 
want  of  knowledge,  they  failed  to  give  him  the  information  requisite  for  this 
purpose,  and  he  drew  the  last  mentioned  note  payable  in  three  \  ears,  and 
omitted  the  stipulation  that  it  should  be  delivered  up  at  the  death  of  B.  unpaid, 
which  note  was  signed  by  A.,  he  being  ignorant  of  the  operation  of  law  thereon; 
that  B.  had  brought  an  action  on  such  note,  and  was  endeavoring  to  enforce  the 
coliection  of  it,  praying  for  an  injunction  and  other  relief,  it  was  held:  1.  That 
the  alleged  mistake  was  not  a  mistake  in  any  matter  of  fact,  but  a  mere  matter 
of  law  2.  That  parol  evidence  was  inadmissible  to  prove  the  agreement  set 
forth,  aud  consequently  that  the  bill  must  be  dismissed.     Id. 


MISTAKE.  363 

meiits,  agreements  entered  into  by  mistake  or  surprise, 
which,  therefore,  the  court  will  not  execute,  must  be  struck 
out,  if  it  is  true,  that  because  parol  evidence  should  not  be 
admitted  at  law,  therefore  it  shall  not  be  admitted  in  equity 
upon  the  question,  whetlier,  admitting  the  agreement  to  be 
such  as  at  law  it  is  said  to  be,  the  party  shall  liave  a  specific 
execution,  or  be  left  to  that  court,  in  which,  it  is  admitted, 
parol  evidence  cannot  be  introduced  "(/")  ''No  person," 
said  Lord  Redesdale,  "shall  be  charged  with  the  execution 
of  an  agreement,  who  has  not,  either  by  himself  or  his 
agent,  signed  a  written  agreement ;  but  the  statute  does  not 
say  that  if  a  written  agreement  is  signed,  the  same  excej)tion 
shall  not  hold  to  it  that  did  before  the  statute. "(.7) 

§  726.  It  follows,  from  what  has  been  stated,  that  where 
the  defendant  has  been  led  into  any  mistake  or  error,  the 
plaintiff  cannot  enforce  the  contract  with  the  mistake. 
Therefore,  where,  in  a  sale  by  auction,  the  plaintiff  had  in- 
duced the  defendant,  who  was  the  vendor,  to  think  that  he 
should  not  bid,  and  so  put  him  off  his  guard,  and  the  estate 
was,  by  a  misa|3prehension  on  the  part  of  the  person  em- 
ploj^ed  to  make  the  reserved  bidding,  allowed  to  be  knocked 
down  to  the  plaintiff,  the  court,  on  the  ground  of  mistake, 
though  there  was  no  fraud,  declined  to  enforce  the  sale. (7^) 
In  another  case,  the  estate  was  sold  in  lots :  the  particular 
stated  that  the  timber  on  lots  four  and  five  was  to  be  taken 
at  a  valuation  :  in  addition  to  this,  one  of  the  conditions  of 

(/)  B  Ves.,  333.  Accordingly  Mauser  v.  Ui)  Mason  v.  Arniit.ag'e,13  Ves.,25;  Pvm  v. 
Back,  6  Ha  ,  443.  •  Blackburn,  3  id  ,  34;  Day  v.  Wells.  30  Beav., 

(g)  lu  Cliuan  v.  Cooke,  1  Sch.  &  Lef  ,  39.        2-2U. 

'  The  utmost  good  faith  i.s  required  by  equity  iu  these  cases;  and  therefore  in 
sales  of  property,  for  instance,  the  seller  is  bound  to  act  strictly  in  fairness,  and 
if  he  mislead  the  purchaser  by  a  false  or  niistakeu  statement  as  to  any  one  essen- 
tial circumstance,  the  sale  is  voidalile.  Dosiiret  v.  Emerson.  '6  Story.  IDO.  Even 
a  mistake  of  the  legal  etfect  of  an  instrument  will  be  relieved  against  when  it 
can  be  shown  to  have  been  brought  about  by  the  misre]>resentations  or  false 
assurance's  of  the  plaintiff,  i'.roadwell  v.  Broadwell,  I  Gilm.,  "iStO;  see,  also. 
Drew  V.  Clarke,  Cooke,  874;  Callendar  v.  Colegrove.  17  Conn.,  1,  is  a  forcible 
authority  on  this  point,  where  a  ]>laintij[f'  sought,  relief  on  these  grounds.  On  a 
bill  charging  a  combination  between  the  defendant  and  otliers  to  defraud  the 
plaintiff,  in  Uie  sale  of  a  mercantile  concern,  a  committee  was  appomted,  which, 
without  finding  any  fraudulent  intent,  stated  in  their  report  a  train  of  circum- 
stances brought  ai)out  l)y  the  management  of  tlie  delendant,  by  wliieh  the 
plaintiff  wasdeceiveci  and  injured;  and  the  court  adjudged  thereon  that  the  con- 
tract of  sale  was  fraudulent  and  void;  but  on  a  motion  in  error  made  by  the  de- 
fendant, it  was  held,  as  it  api)eared  from  the  finding  of  the  committee,  the  plaintitT 
entered  into  the  contract  from  a  mistake  as  to  the  real  nature  of  the  concern, 
in  consequence  of  which  the  substantial  object  of  the  contract  was  defeated, 
this  W'as  sufficient  ground  for  settinix  it  aside. 


364         FUV  ON  SPECIFIC  PERFOKMAXCE  OF  C(JXTRACTS. 

sale  specified  tliat  the  purchaser  was  to  take  the  timber 
(speaking  generally  without  reference  to  any  particular  lot) 
at  a  valuation :  Grant,  M.  R.,  said,  that  the  express  decla- 
ration as  to  lots  four  and  five  was  so  likely  to  mislead  a  pur- 
chaser as  to  the  meaning  of  the  conditions,  that  supposing 
that  the  right  construction  of  the  condition  was  that  it  ap- 
l)lied  to  all  the  lots,  it  would  be  inequita])Ie  to  enforce 
specific  performance  of  the  contract. (/)'  Again,  where  (,/) 
on  a  sale  by  auction,  the  plan  annexed  to  the  particulars 
of  the  property  (a  house  and  giounds)  showed  a  shrulibery 
on  the  western  boundary,  and  the  defendant,  going  to  in- 
spect the  property  before  the  sale,  with  the  2)lan  in  his 
hand,  found  on  tlie  western  side  a  belt  of  shrubs  with  an 
iron  fence  outside  it  inclosing  three  ornamental  trees,  and 
he  then  bought  the  property,  believing  that  the  fence  was 
the  boundary,  but  the  real  boundary  was  a  line  of  shrubs 
within  the  shrubbery  and  did  not  inclose  the  trees,  the  court 
of  appeal  held  that  the  mistake  was  increased  by  at  least 
craasa  ner/lir/entia  on  the  part  of  the  vendors,  and  ac- 
cordingly dismissed,  with  costs,  their  bill  for  specific  per- 
formance. 

§  797.  In  the  preceding  cases,  it  will  be  observed  that  the 
plaintiff  contributed  to  the  mistake  of  the  defendant :  and 
there  is  no  doubt  that  the  circumstance  that  the  i)laintiff 
has  by  his  words  or  his  silence,  or  in  any  way,  contributed 
to  the  error  of  the  defendant,  even  though  he  may  have 
done  so  unintentionally,  greatly  strengthens  the  defendant's 
case.(/i) 

§  7"28.  Even  where  the  mistake  is  purely  due  to  the  de- 
fendant himself  or  his  agent,  the  court  wij],  in  some  cases, 
refuse  specific  performance: (7)  indeed,  it  will  sometimes 
furnish  active  assistance  on  the  ground  of  the  mistake  of 
the  party  himself  as  well  as  of  another,  as  is  strongly  shown 
by  a  case  in  which  a  professional  man  was  held  entitled  as 
plaintiff  to  the  rectification  of  an  error  in  a  deed  of  his  own 
drawing. (?7^)  The  cases,  too,  on  intoxication  furnish  an 
analogy  to  this  doctrine  :  for  that  circumstance  is  a  ground 

(i>  Hlgiiliison  V.  Clowes,  15  Ves  .  51G.    Sec.  cf.  (  ahalle.o  v.  Heutv.  L.  R  9  Ch  ,447;  Bray 

too,  pcr.ItiBsel,  M.  K.,ii,Joiii-8  V.  Kimmcr,  14  v.  ISrijjas,  2ip  W    K  , 'JOi 

Ch   i»    r.'.fi;  Moxey  y.  Hljjwoo.l,  4  l»  •  <..  V.  &        i/i  S.-e  pur  ,Ji-s-el,  M.  R.,  in  Jones  v.  Rim 

J  ,351;  and  el.  l'lieli)s  V.  W  hite,  o  L   K.  Ir,  nicr,  ]4  Cii.  D.,  f,M. 

^•■,  ,.  „  ,    T    ,.  „     .  (w>  IJall  V.  Stoiie,  1  S   &  S.,  210;  cf.  Coxv. 

(J)  Dentiy  v.  Ilancook,  L.  R  6  Cli.,  1  Sniilh,  19  L.  T.  (N.  t>  ).  517 

(k)  Baskcomb  V.  Beckwitli,  L  R  8Eq.,  10); 


MISTAKE.  '  365 

of  defense,  though  it  may  have  been  in  nowise  brought 
about  by  the  plaintiff. (;/)' 

§  729.  On  this  principle,  where  a  person,  who  was  em- 
ployed to  bid  for  one  of  two  distinct  estates  offered  for  sale 
at  the  same  time  and  place,  came  into  the  auction-room,  and 
after  hearing  the  description  of  a  lot  which  was  perfectly 
different  from  that  for  which  he  was  engaged  to  bid,  kept 
bidding  in  a  hasty  and  inconsiderate  manner  for,  and  ulti- 
mately purchased,  this  lot,  which,  l)y  his  own  gross  mistake, 
he  thought  to  be  the  lot  for  which  he  was  to  bid,  the  court 
refused  specifically  to  carry  out  the  sale  (o)  And  where  a 
vendor  by  mistake  offered  to  sell  an  estate  for  £1,100,  Avhich 
figure  he  had  by  a  wiong  addition  reached  instead  of  £2,100, 
the  court  refused  the  purchaser  specific  performance  and 
dismissed  his  bill,  without  costs. (p) 

§  730.  So  where  a  vendor  had  revoked  the  authority  of 
the  auctioneer  as  to  part  of  the  property,  and  the  auctioneer 
inadvertently  sold  the  whole,  the  court  refused  specific  per- 
formance, though  the  purchaser  was  justified  in  believing 
that  he  purchased  all  he  claimed  by  his  bill.((^)  Again, 
where  a  description  of  parcels  was  prepared  by  the  vendor's 
solicitor  from  a  previous  description,  which  had  been  pre- 
pared by  another  solicitor  on  the  report  of  a  surveyor,  and 
the  descri^jtion  turned  out  to  be  erroneous  as  to  quantity, 

(n)  See  supra,  §  384.  mistake  will  not  be  a  ground  for  opening  bld- 

(0)  Malins  v.  Freeman,  2  Ke.,  25.  tiings,  which  can  now  only  be  opened  for 

(/))  Webster  V.  Cecil,  30  Beav  ,  62.    As  to  fraud.    Griffiths  v.  Jones,  L.  K.  15  Eq  ,  279. 

the  costs  in  this  case,  see  per  James,  L.  J  ,  In  (q)  Manser  v.  Back,  6  Ha  ,  Wi. 

Tamplin  v.  james,  15  Ch.  D..  221.    Such  a 

1  The  "Western  R.  R.  Corp.  v.  Babcock,  6  Mete,  346,  is  an  analogous  case. 
It  was  there  held  that  a  defendant  may  sliow,  that  without  gross  laches  of  liis 
own,  he  was  led  into  a  mistake  by  some  uncertainty  or  obscurity  of  the  descrip- 
tive part  of  the  agreement,  so  that  it  applied  toad  liferent  subject  from  that 
which  he  understood  at  the  time,  although  he  was  not  misled  by  any  misrej^re- 
sentation  of  the  other  party;  or  he  may  show  that  the  bargain  will  operate  in  a 
different  way  from  that  which  was  contemplated  by  the  parties  when  they  exe- 
cuted it.  But  Mortimer  v.  Pritchard,  1  Bailey's  Ch..  505,  expresses,  seemingly, 
a  different  view.  It  is  said  in  that  case  that  a  mistake,  suL;h  as  would  entitle  a 
party  to  relief,  must  have  been  made  under  the  intluence  of  false  appearances, 
and  not  merely  from  the  sugiiestions  of  the  party's  own  mind.  The  grounds 
of  the  decisions  in  Post  v.  Leet,  8  Paige,  'S'Sl,  made  by  Walworth,  Ch.,  do  not 
atppear  unapplicable  to  the  point  in  question.  There  (he  terms  of  a  sale,  by  a 
master,  were  that  the  lands  wore  sold  free  from  iiiciunbrances,  and  that  all 
taxes  and  assessments  thereon  should  lie  paid  out  of  the  purchase  money.  Held, 
that  the  purchaser  could  not  be  compelled  to  take  the  laud  subject  to  an  assess- 
ment, for  a  street,  laid  out  and  used  by  the  public  prior  to  the  aile,  though  the 
assessment  had  not  been  formally  confirmed  until  aflericards,  it  appearing  that  the 
purchaser  supposed  such  assessment  included  in  the  terms  of  the  sale,  and  a  resale 
was  ordered. 


366        FRY  ox  SPECIFIC  PEUFORMANCE  OF  CONTRACTS. 

the  court  would  not  enforce  the  sale  on  tlie  vendor,  unless  the 
case  were  one  for  compensation,  and  the  purchaser  would 
submit  to  it.(;)  And  where  a  vendor  sold  a  manor,  being 
at  the  time  ignorant  of  its  exact  extent,  and  both  jiarties  at 
the  time  of  the  contract  believed  that  what  it  included  was 
something  different  from  what  it  really  did,  and  the  manor 
proved  to  comprise  valuable  property  that  the  vendor  did 
not  know  to  be  within  it,  the  purchaser  s  bill  for  specific  per- 
formance was  dismissed.  (5) 

§  731.  Where  a  defendant  was  tenant  for  life  of  an  estate, 
under  a  settlement  which  contained  a  proviso,  that,  if  he 
purchased  and  settled  an  estate  in  fee  simple  in  possession 
in  some  convenient  place  or  places  of  a  value  equal  to  or 
greater  than  the  estate  comprised  in  the  settlement,  then 
this  estate  should  become  the  x^roperty  of  the  tenant  for 
life ;  and  he,  imagining  that  he  had,  with  the  concurrence 
of  his  wife,  an  absolute  power  of  disposition  over  the  set- 
tled estate,  entered  into  a  contract  for  sale  :  Plumer,  Y.  C, 
refused  to  carry  it  into  effect  by  an  exercise  of  the  proviso 
in  the  settlement,  considering  that  such  a  performance  of 
the  contract  would  be  attended  with  great  difficulty,  and 
that  the  defendant  had  not  contracted  for  that  purj)ose  or 
with  that  intention.  (Z^) 

§  Tim.  In  a  case  where  a  corporation  was  contracting  by 
an  agent,  and  he  swore. to  his  sense  and  understanding  of 
the  contract  he  entered  into  being  to  a  certain  effect  which 
the  contract  did  not  justifj'^,  and  a  bill  was  tiled  against  the 
corporation,  one  ground  upou  which  Knight  Bruce,  L.  J., 
dismissed  an  appeal  against  the  corporation  was  this  mis- 
take of  the  agent.  (2^.) 

It  would  open  a  wide  field  of  defense  if  every  misappre- 
hension of  the  legal  effect  of  a  contract  furnished  a  valid 
one.  But  i^erhaps  the  court  considers  with  more  favor  as  a 
defense  the  allegation  of  mistake  in  an  agent  than  in  a  prin- 
cipal, (r) 

§  7JJa.  Where  there  has  been  no  misrepresentation,  and 

(r)  Lesliev.  Tompson,9Ha., 268.  See, also,  Richinls  v.  Xoith  London  Railway  Co.,  20 

per  LordCottenhamin  Alvanlev  v.  Kinnaird,'  W.  R.,  194. 

2  Mac  &  G.  7;  Helahain  v.  Langlev,  1  Y.  &  (/,  Howell  v.  George,  1  Mad.,  1     Of.  Hood 

C.  C.  C,  175;  Neap  v.   Abbott,  C.  P.  Coop.  v.  Oglander,  34  Beav.,  518,  519. 

Rep.  (1837,  1^38),  333.    And  cl.  McKenzie  v.  («)  Wycombe  Railway  Co.  v.  Donnington 

Hesketh,  7  Cli.  L).,  675.  Hospital.  L   R.  1  Uh  ,  ecS 

(s)  Baxendale  v.  t?eale,  19  Beav,  601.    See,  (v)  Per  Turner,  L. .).,  in  Morrison  v.  Bar- 

tOo,Earl  of  Durham  v.  Legard,  34  Beav. ,611;  row,  1  De  G.  F.  &  J.,  638. 


MISTAKE.  367 

there  is  no  ambiguity  in  the  terms  of  the  contract,  the  de- 
fendant cannot  be  alloAved  to  evade  the  performance  of  it 
"by  the  simple  statement  that  he  has  made  a  mistake. (-w) 
In  a  case  beford  Lord  Romilly,  M.  R.,  where  the  defendant 
alleged  that  he  misunderstood  the  ijarticulars  of  sale,  his 
Lordship  observed  that  "if  there  appear  on  the  particulars 
no  ground  for  the  mistake,  if  no  man  with  liis  senses  about 
him  could  have  misapprehended  the  character  of  the  par- 
cels, then  I  do  not  think  it  is  sufficient  for  the  purchaser  to 
swear  that  he  made  a  mistake  or  that  he  did  not  under- 
stand wliat  he  was  about. "(^)  And  so  where,  according  to 
the  true  construction,  the  contract  made  the  intended  lease 
determinable  at  the  option  of  eitlier  paity,  but  the  lessee 
insisted  that  he  signed  it  in  the  belief  that  it  gave  the 
option  to  him  only,  the  court  overruled  the  defense  based 
on  the  alleged  mistake.  (?/) 

§  73-J:.  So,  again,  where  the  proi^erty  sold  (an  inn  and 
shoj))  was  described  in  the  particulars  as  consisting  of  Xos. 
454  and  455  on  the  tithe  map,  containing  by  admeasure- 
ment twenty  perches  more  or  less,  and  in  the  occupation  of 
Mrs.  K,  and  Mr.  S., — all  which  statements  were  correct — 
and  correct  j^lans  of  the  property  were  exhibited  at  the 
auction  ;  and  the  purchaser  deposed  that  he  did  not  see  the 
plans,  but  had  known  the  property  from  his  boyhood,  and 
bought  it  in  the  belief  that  it  included  two  idiots  of  garden 
ground  which  had  for  many  years  been  occupied  with  the 
gardens  behind  the  inn  and  shop  respectively  ;  it  was  held 
by  Baggallay,  L.  J.  (sitting  for  Malins,  Y.  C),  and  by  the 
court  of  appeal  that  ihe  purchaser  was  not  entitled  to  be 
released  from  his  bargain. (2')  "If,"  said  James,  L.  J.,  "a 
man  will  not  take  reasonable  care  to  ascertain  what  he  is 
buying,  he  must  take  the  consequences.  ^'  *  '■  It  is  not 
enough  for  a  purchaser  to  swear  '  I  thought  the  farm  sold 
contained  twelve  fields  which  I  knew,  and  I  find  it  does  not 
include  tliem  all,'  or,  'I  thought  it  contained  100  acres  and 
it  only  contains  80.'  It  would  open  the  door  to  fraud  if 
such  a  defense  was  to  be  allowed.  Perhaps  some  of  the 
cases  on  this  subject  go  too  far,  but  for  the  most  part  the 

(ic)  Per  Baggallay,  L.  J.,  In  Tamplin  v.  proved  by  Bacrgallay,  L   J.,  in  Tamplin  v. 

James,  15  Cli.  D,  217;  Morley  v.  Claverlng,  James,  15  Ch   1>.,'2|8. 

29  Beav.,  84.  (j/'  Powell  v.  smith,  I..  R  14  Eq.,  S5. 

(«)  Swaisland  v.  Dearsley,  29  Beav.,  430.  (z)  Taaipliu  v.  James,  15  Cli.  1).,  2i5. 
Tliis  statement  of  tiie  law  was  cited  and  ap- 


368         I'itY  ox  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

cases  where  a  defendant  has  escaped  on  the  ground  of  a 
mistake  not  contributed  to  by  the  plaintiff,  have  been  cases 
wliere  a  hardsliip  amounting  to  injustice  would  have  been 
inflicted  uj^on  liim  by  holding  him  to  his  bargain,  and  it 
was  unreasonable  to  hold  him  to  it."(a) 

§  75J»>.  A  mistake  ^Durely  attributable  to  one  partj^  may 
furnish  a  defense  to  specific  performance.  It  does  not 
thence  follow  that  it  enables  the  party  so  falling  into  error 
unconditionally  to  rescind  for  such  error.  So,  where  the 
defendants  sold  to  the  plaintiffs  100  chests  of  tea  ex  Star  of 
the  East,  and  the  sale  was  made  by  a  sample  j)roduced 
by  the  defendants  as  from  that  ship  when,  in  fact,  it  had 
nothing  to  do  with  that  cargo,  and  the  defendants  gave 
notice  that  they  Avould,  on  that  account,  treat  tlie  contract 
as  void,  the  Court  of  Queen's  Bench  detennined  that  there 
was  no  ecpiity  in  the  defendants  simply  to  rescind  the  con- 
tract. (/>)' 

Jj  7J{0.  AVe  may  now^  proceed  to  consider  the  effect  of  a 
parol  variation  set  up  by  the  defendant  as  a  ground  for  re- 
fusing the  specific  performance  of  a  written  contract  alleged 
by  the  plaintiff.  It  de^Dends  on  the  particular  circumstances 
of  each  case  wiiether  the  variation  "is  to  defeat  the  plain- 
tiff's title  to  have  a  specific  performance,  or  whether  the 
court  will  perform  the  contract,  taking  care  that  the  subject 
matter  of  this  parol  agreement  or  understanding  is  also 
carried  into  effect,  so  that  all  parties  may  have  the  benefit 
of  what  they  contracted  for.(c) 

§  737.  (1)  Where  the  parol  variation  set  up  by  the  defend- 

(fi)  15  Ch   D,2-21.  Birmingham  Railway  Co.  v.  Winter,  Or.  & 

(b)  Scott  V.  Littit'iiale.  S  El.  &  Bl.,  815.  Ph.,  62;  Smith  v.  Wheatcroft,  9  Ch.  D.,  223, 

(c)  Per  Liord  Cottenhani  in  London  and    Cf.  Morgan  v.  Griffith,  L.  R.  6  Ex.,  73. 

^  Party  defrauded  may  rexcirul.']  The  party  who  would  rescind  a  fraudulent 
contract,  must  return  whatever  he  has  received  upon  it,  in  order  to  recover 
what  he  has  paid  upon  it;  but  if  the  other  party  has  intangled  himself  hy  his 
own  fraud,  .so  that  he  cannot  he  restored  to  his  original  condition,  he  must 
bare  the  loss.  Masson  v.  Bovert,  1  Den..  09;  Arnold  v.  Nichols,  6-4  N.  Y.,  117; 
Eastman  v.  Plumer,  46  N.  H,,  464;  Hammond  v.  Pennock,  6  N.  Y.,  145. 
Where  a  party  has  been  defrauded  in  the  purchase  or  sale  of  real  property,  he 
may  rescind  the  contract,  so  as  to  restore  the  parties  to  the  same  situation  they 
were  in  when  the  contract  was  made;  or  he  may  afiirm  the  contract,  so  far  as 
it  lias  been  executed,  and  claim  a  compensation  for  the  fraud.  Bradley  v. 
Bosley,  1  Barb.  Ch.,  125.  Some  cases  hold  that  the  rescission  must  be  made 
after  the  party  has  had  a  reasonable  opportunity  to  discover  the  fraud,  and  that 
vigilance  and  care  must  be  exercised.  Ross  v.  Filterton,  6  Ohio.  287;  Lepton 
V.  Firltlock,  13  Alb.  Law  J.,  27.  But  these  cases  must  be  considered  in  con- 
nection with  the  facts  then  presented,  and  do  not  establish  any  general  rule 
applicable  to  all  cases.     Miller,  J.,  in  Baker  v.  Lener,  67  N.  Y.,  304. 


MISTAKE.  369 

ant  shows  that  after  the  parties  to  the  contract  mutually 
agreed  with  one  another,  an  error  occurred  in  the  reduction 
of  the  contract  into  writing,  and  it  appears  that  the  written 
contract  varied  according  to  the  defendant' s  contention  rep- 
resents the  true  contract  between  the  parties,  the  court  will, 
it  seems,  enforce  specific  jDerformance  of  the  contract  so 
varied.' 

§  738.  Thus,  where  a  bill  was  brought  for  the  specific 
performance  of  a  contract  to  grant  a  lease  at  a  rent  of  £9 
per  annum,  and  the  defendant  insisted  that  it  ought  to  have 
been  a  term  of  the  contract  that  the  plaintiff  should  pay  all 
taxes :  Lord  Hardwicke  granted  specific  performance,  and 
directed  that  the  terms  of  the  verbal  contract  should  be 
carried  into  effect  by  the  covenants  to  be  inserted  in  the 
lease.  (<i)  Again,  where  a  bill  j)rayed  the  execution  of  a 
contract  for  the  sale  of  an  estate,  and  the  defendant  re- 
sisted, and  proved  parol  declarations  by  the  auctioneer  as 
to  a  right  of  common,  and  that  previously  to  the  sale  the 
particular  had  been  altered  as  to  a  certain  right  of  common ; 
the  plaintifl:  proposed  that  his  bill  should  be  dismissed,  but 
Lord  Eldon  pursued  the  court  which  the  defendant  insisted 
on,  which  was  specifically  performing  the  contract  as  con- 
tended for  by  the  defendant,  thus  saving  the  ex^oense  of  a 
cross-bill,  (e) 

§  739.  (2)  But  where  the  mistake  or  parol  variation  set 
up  by  the  defendant  does  not  show  a  mere  mistake  in  the 
reduction  of  the  contract  into  writing,  but  that  one  party 
understood  one  thing  and  the  other  another,  there  is  no 
such  contract  as  the  court  will  enforce,  and  the  plaintifE'  s 
action  is  consequently  dismissed. 

(d)  Joynes  v.  Statham,  3  Atk.,  388.  (e)  Fife  v.  Clayton,  13  Ves.,  546.    See,  also, 

Gwynn  v.  Lethbridge,  14  id. ,  585. 

1  Bradford  v.  Union  Bank  of  Tennessee,  13  How.  (U.  S.),  57  is  an  ample  authority, 
upon  this  branch  of  equity.  It  is  laid  down  in  that  case,  that  where  one  party  to 
a  contract  in  writing,  brings  a  bill  in  equity  for  a  specific  performance  thereof, 
and  the  defendant  in  his  answer,  submitting  to  a  specific  performance  of  the 
real  agreement,  alleges  that  the  written  contract  was  entered  into  by  mistake,  and 
under  a  misapprehension  of  the  facts,  and  estabhshes  this  by  evidence,  he  is  en- 
titled to  a  specific  performance  of  the  agreement  as  proved,  even  against  the 
claim  of  the  plaintifl'  to  have  his  biU  dismissed.  See  Bradbury  v.  White,  4  Green, 
391.  Upon  this  same  principle,  in  Arnold  v.  Arnold,  2  Dev.  Ch.,  467,  where  a 
vendor  of  a  chattel  received  payments  by  the  vendee,  with  notice  that  he  mis- 
took the  price  of  the  sale,  the  court  compelled  a  conveyance  in  favor  of  the 
vendee,  at  the  price  understood  by  him  See  Ferussac  v.  Thorn,  1  Barb.  Sup. 
Ct.  R.,  44;  Wells  v.  Kruger,  5  Paige,  164. 
24 


370        FRY  ON  SPECIFIC  PEKFORMAXCE  OF  CONTRACTS. 

Therefore,  where  the  court  thought  that  the  plaintiff  and 
defendant  had  both  been  mistaken  in  a  contract  which  con- 
tained certain  ambiguous  conditions  as  to  the  payment  for 
timber,  the  bill  was  dismissed.  (/■) 

§  740.  The  same  result  follows  where,  from  any  other 
circumstance,  the  enforcement  of  the  parol  variation  set  up 
by  the  defendant  would  be  unfair  on  either  party.  Accord- 
ingly, where  the  plaintiff  set  up  a  contract  which  the  de- 
fendant successfully  resisted  by  parol  evidence  of  a  subse- 
quent contract,  and  the  plaintiff  insisted  on  a  x^erfonnance 
of  the  contract  so  set  up  ;  Strange,  M.  R.,  refused  to  grant 
it,  on  the  grounds  that  it  would  be  a  surprise  on  the  de- 
fendant to  insist,  under  the  prayer  for  general  relief,  on  the 
performance  of  a  contract  which  was  not  put  in  issue  by 
the  record,  and  that  the  plaintiff  had  really  caused  the  liti- 
gation by  his  refusal  to  adopt  the  real  contract. ((7)  Again, 
where  the  defendant  proved  a  parol  variation,  and  a  great 
lapse  of  time  had  occurred,  and  compensation  in  respect  of 
the  term  in  dispute  must  have  been  allowed,  if  the  contract 
had  been  enforced,  for  the  period  whilst  the  doubt  about  the 
terms  of  the  contract  had  been  subsisting,  the  plaintiff's 
bill  was  dismissed,  but  without  costs.  (^)' 

So  in  Lindsay  v.  Lynch,  (/)  where  the  plaintiff  had  refused 
throughout  to  adopt  the  contract  which  the  defendant  ad- 

(/)  Clowes  V.  Higginson,  1  V.  &  B.,  524.  the  statement  of  this  case  by  Grant,  M.  R.,  in 

See  the  judgment  in  this  case  observed  on  by  Price  v.  Dyer,  17  Ves. ,  364. 

Lord  St.  Leonards,  Vend.,  1S3,  and  by  Stuart,  (h)  Garrard  v.  Grlnllng,  2  Sw.,  244. 

V.  C,  in  Dear  v.  Verity,  17  \V.  R.,  568.    See,  (t)  2  Sch.  &  Lef,  1,  10-11.    See  Jefferv  v. 

too,  Butterworth  v.  Walker,  13  W.  R..  168.  Stephens,  6  Jur.  (N.  S.),  947;  8  W.  R.,  427; 

{g)  Legal  v.  Miller,  2  Ves.  Sen.,  299.    See  Smith  v.  VVheatcrolt,  9  Ch.  D.,  223. 

>  Where  there  is  doubt  whether  the  parties  understood  the  contract  alike, 
specific  performance  will  be  denied.  Therefore,  where  a  block  of  land,  which 
had  been  subdivided  into  several  distinct  lots,  was  put  up  and  sold  at  auction, 
and  was  struck  off  to  the  purchaser  at  a  specific  sum,  and  the  vendor,  upon  a  bill 
filed  for  a  specific  performance,  insisted  and  proved  that  the  premises  were  put 
up  and  sold  bj-  the  lot,  and  the  purchaser,  in  his  answer,  insisted  that  the  premises 
were  put  up  as  one  entire  parcel,  and  he  bid  for  the  premises  at  a  price  which 
was  for  the  entire  block ;  and  the  evidence  was  such  as  to  render  it  doubtful 
whether  the  defendant  understood  that  the  premises  were  put  up  and  sold  by 
the  lot,  the  court  decided  that  the  complaint  was  not  entitled  to  a  specific  per- 
formance of  the  contract.  Coles  v.  Bowne,  10  Paige,  536.  See  James  v.  The 
State  Bank,  17  Ala.,  69;  Story's  Eq.  Jur.,  ^  134;  Lyman  v.  United  States  In- 
surance Company,  17  John.,  iiS'6,  is  an  authority  of  the  same  nature.  There, 
the  appellants  applied  to  the  respondents  for  insurance  on  a  brig,  as  a  Portugese 
vessel;  but  the  policy  was  made  out  for  an  American  vessel.  It  was  apparent 
that  there  was  no  fraud  in  the  case,  but  that  the  parties  had  contracted  in  mutual 
misunderstanding  and  error.  Piatt,  J.,  was,  therefore,  of  the  opinion  that 
clearly  no  relief  could  be  granted. 


MISTAKE.  371 

mitted,  the  bill  was  dismissed,  but  without  prejudice  to 
another  bill. 

§  741.  (3)  Where,  as  is  often  the  case,  the  court  does  not 
decide  that  the  parol  variation  falls  clearly  under  either  of 
the  previous  cases,  but  merely  that  the  defendant  contracted 
under  mistake,  it  puts  the  plaintiff  to  his  election  either  to 
have  his  action  dismissed,  or  to  have  the  contract  executed 
with  the  parol  variation. (y) 

§  742.  Thus,  in  Higginson  v.  Clowes, (^)  where  the  con- 
ditions of  sale  were  likely  to  have  misled  the  defendant,  and 
the  defendant  contended  for  a  different  construction  from 
that  of  the  plaintiff,  Grant,  M.  K.,  offered  the  plaintiff 
either  to  have  his  bill  dismissed,  or  to  have  the  contract 
executed  on  the  defendant's  construction.  The  counsel  for 
the  defendant  contended  that  it  was  not  competent  to  the 
plaintiff  to'  have  his  bill  dismissed,  but  that  the  defendant, 
without  filing  a  cross-bill,  might  have  a  specific  perform- 
ance of  the  contract.  Grant,  M.  R.,  however,  held  that 
that  right  existed  where  the  defendant's  construction  was 
adopted  by  the  court ;  but  that  where,  as  in  the  case  before 
him,  the  court  did  not  decide  that  the  defendant's  construc- 
tion was  right,  but  only  that  he  had  contracted  under  a 
mistake  created  by  the  plaintiff,  the  bill  was  merely  dis- 
missed. In  a  subsequent  suit  on  the  same  contract,  where 
the  parties  were  inverted,  Plumer,  V.  C,  holding  that  there 
had  been  a  mistake  on  both  sides,  refused  specific  perform- 
ance on  the  construction  of  the  defendant  in  the  first  suit. 

§  743.  In  Ramsbottom  v.  Gosden,(w)  where  the  written 
contract  confined  a  reference  of  expenses  to  those  of  con- 
veyance, but  the  defendant  proved  by  the  parol  evidence  of 
the  attorney  that  it  was  the  intention  of  both  parties  that 
the  plaintiff,  who  was  the  purchaser,  should  also  pay  the 
expenses  of  making  out  the  defendant's  title.  Grant,  M.  R., 
put  the  plaintiff  to  his  election,  either  to  have  the  contract 
performed  in  the  way  contained  for  by  the  defendant,  or  to 
have  his  bill  dismissed.  And  in  a  subsequent  case,  where 
the  defendant  proved  a  parol  variation,  the  same  judge 

U)  See,  in  addition  to  the  cases  cited  infra,  cific  performance  enforced  on  the  defend- 

Browne  v.  Marquis  of  Sligo,  10  Ir.  Ch.  R.,  1.  ant's  contention,  as  the  error  appears  to  have 

(k)  15  Ves.,  516.  been  merely  in  the  reduction  of  the  contract 

{I)  1  V.  &  B.,  524.  into  writing? 
(n»)  1  v.  &  B  ,  165.  Query,  why  was  not  spe- 


372        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

njinin  left  tlie  plaintiff  either  to  have  a  specific  performance 
with  this  variation,  or  to  have  his  bill  dismissed. (?i) 

§  744.  In  a  case  where  parol  evidence  was  admitted  on 
behalf  of  the  defendants  to  show  that  a  contract  by  several 
persons  to  enter  into  bonds  in  £1,500  ought  to  have  been 
for  one  Joint  bond  in  that  amount  by  all ;  Plumer,  V.  C, 
left  it  to  the  plaintiff  to  have  his  bill  dismissed,  or  to  take  a 
decree  for  the  joint  bond,  or  to  take  an  issue  on  which  the 
witnesses  could  be  examined,  (o) 

§  745.  In  Clarke  v.  Moore,  (j9)  where  a  landlord  sought 
specific  iDerformance  of  a  contract  for  a  lease,  and  the  de- 
fendant set  up  a  parol  contract  to  abate  the  rent,  to  which 
the  plaintiff  at  the  bar  submitted,  the  lease  was  directed 
with  the  abatement  and  each  party  was  left  to  bear  his  own 
costs :  and  in  another  case,  where  it  appeared  that,  in  ad- 
dition to  the  written  contract,  there  had  been  an  understand- 
ing between  the  agent  of  the  plaintiff  and  the  defendant  as 
to  payment  for  timber  and  certain  expenses,  the  plaintiff 
consenting  to  adopt  the  terms  as  part  of  his  contract,  specific 
performance  was  granted,  {q) 

§  746.  Where  there  is  a  stipulation  which  one  of  the 
contracting  parties  may  reasonably  have  understood  to  be 
implied  in  the  contract,  and  did  so  understand — as,  for 
instance,  the  insertion  of  a  usual  clause  in  a  lease — specific 
performance  wiU  not  be  enforced  against  such  party  except 
with  such  condition  included,  (r)  And  where  a  plaintiff 
sought  relief  on  the  ground  of  a  covenant  for  renewal,  which 
had  for  one  hundred  and  fifty  years  been  acted  on  in  a 
manner  different  from  its  terms — namely,  by  continually  in- 
creasing the  fine,  and  not  the  rent :  the  court  held  that  the 
covenant  could  not  be  carried  into  execution  according  to 
its  original  terms,  but  might  be  on  the  plaintiff' s  submitting 
to  a  conscientious  modification  of  it,  to  meet  the  circum- 
stances of  the  case.  (5)'  In  this  instance  acquiescence,  and 
not  mistake,  was  the  ground  of  the  variation. 

(n)  Clarke  v.  Grant,  14  Ves.,  519.    As  to  26  Beav.,253;  Donald  v.  Scott,  10  Ir.  Ch.  R.^ 

this  case  see  Dear  v.  Verity,  17  W.  R.,  569.  4%.    Distinguish  Snelling  v.  Thomas,  L.  R. 

(0)  Lord  Gordon  v.  Marquis  of  Hertford,  2  17  Eq  ,  303. 

Mad.,  106.  (r)  Ricketts  v.  Bell,  1  De  G.  &  Sm.,  335. 

(p)  1  Jon.  &  D.,  723.  Consider  Chappell  v.  Gregory,  34  Beav.,  250. 

(q)  London  and  Birmingham  Railway  Co.  (s)  Davis  v.  Hone,  2  Sch.  «&  Lef.,  341. 
V.  Winter,  Cr.  &Ph.,57;  cf.  Barnard  v.  Cave, 

1  And  a  court  of  equity  is  competent  to  correct  or  reform  any  material  mis- 
take, in  agreements  or  deeds,  occasioned  by  tlie  omission  or  insertion  of  material 


MISTAKE.  373 

§  747.  The  parol  variation  may  be  alleged  by  the  plaintiff 
for  the  purpose  of  offering  the  defendant  his  election  ;(^)  or 
it  may  be  set  up  by  the  defendant  by  way  of  defense.  If,  in 
the  absence  of  its  being  thus  alleged,  it  comes  out  on  the 
evidence,  the  court  will  inquire  into  it  before  disposing  of 
the  case.('Z^.)  The  court  will  do  the  same  where  the  variation 
is  alleged  by  the  defendant,  and  so  far  proved  as  to  raise  a 
suspicion  of  its  existence,  and  yet  not  to  satisfy  the  court.  («) 

§  748.  From  the  great  danger  which  would  otherwise 
arise,  the  court  will  not  allow  a  person  to  escape  from  a 
written  contract  on  slight  parol  evidence  of  mistake  on  his 
own  part.     So  in  one  case  Lord  Hatherley  (thenV.  C.)  said 

(t)  Robinson  v.  Page,  SRuss.,  114.  &  Ph.,  57;  cf.  Helsham  v.  Langley,  1  Y.  &  C. 

(u)  Parken  v.  Whitby,  T.  &  R.,  366;  London    C.  C,  175. 
and  Birmingham  Railway  Co.  v.  Winter,  Or.       (v)  Van  v.  Corpe,  3  My.  &  K.,  269. 

stipulations,  wliether  it  be  simply  upon  parol  testimony  or  more  cogent  proof. 
Tilton  V.  Tilton,  9  N.  H.,  385.  Wemple  v.  Stuart,  22  Barb.,  154,  is  an  im- 
portant case  in  illustration.  The  action  was  commenced  to  recover  damages 
for  the  non-performance  of  a  contract  made  by  the  defendants,  with  Gardinier 
and  Vandenburgh,  of  whom  the  plaintiff,  Wemple,  was  the  assignee,  in  which 
the  defendant  sold  and  agreed  to  deliver  to  Gardinier  and  Vandenburgh  certain 
merchantable  plank  to  the  amount  of  30,000.  The  defendant  further  agreed  to 
deliver  to  G.  and  V.,  in  addition  to  this  quantity,  all  the  merchantable  plank  of 
the  description  agreed  between  them,  that  they,  the  defendants,  might  saw  at 
their  mill  the  ensuing  winter,  at  certain  prices.  The  complaint  alleged  a  neglect 
and  refusal  by  the  defendants  to  ]ierform  the  contract.  It  also  alleged  an  assign- 
ment by  G.  and  V.  to  the  plaintiffs  The  defendants,  in  their  answer,  alleged 
that  it  was  the  intention  of  the  parties  to  the  contract  to  sell  and  purchase  the 
plank  which  the  defendants  then  had  at  their  mill,  to  the  number  of  30,000,  if 
they  had  so  many,  and  if  not,  then  it  was  the  intention  of  the  defendants  to  sell, 
and  of  G.  tlnd  V.  to  purchase  the  plank  they  then  had  sawed  at  the  mill  and  no 
more.  And  the  defendants  insisted  that  such  contract  should  be  so  construed, 
and  should  be  reformed  in  accordance  with  such  intention.  This  allegation 
was  not  denied  in  the  repi}'  of  the  plaintiffs.  Paige,  J. ,  in  deciding  the  case, 
said:  "  The  statements  in  the  answer  show  no  right  to  demand  a  reformation 
of  the  contract,  by  conforming  to  the  alleged  intention  of  the  parties.  A  writ- 
ten contract,  in  the  absence  of  fraud,  can  only  be  reformed  where  it  is  shown, 
by  satisfactory  proof,  that  there  is  a  plain  mistake  in  the  contract,  by  the  acci- 
dental omission  or  insertion  of  a  material  stipulation,  contrarj'  to  the  intention 
of  both  parties,  by  expressing  something  different  in  substance  from  the  truth 
of  that  intent,  and  under  a  mutual  mistake.  1  Story's  Eq.  Jur. ,  §§  152,  155, 
156,  157;  2  John.'s  Ch.,  595.  The  answer,  in  setting  up  the  mistake  in  the 
written  contract,  should  have  stated  that  the  parties  agreed  to  sell  and  purchase 
only  the  plank  which  the  defendants  then  had  at  their  mill;  and  then  should 
have  alleged  that  in  reducing  the  contract  to  writing,  this  limitation  of  the 
quantity  sold  and  purchased  was  accidentally  omitted,  contrary  to  the  intention. 
of  the  parties:  merely  alleging  that  the  parties  intended  to  sell  and  purchase  the 
plank  then  at  the  mill  of  "the  defendants,  is  not  sufficient  to  entitle  the  defend- 
ants to  a  reformation  of  the  contract  in  accordance  with  that  intention.  To 
show  that  a  written  contract  does  not  conform  to  the  actual  agreement  made 
and  intended  to  have  been  reduced  to  writing,  the  actual  agreem«it  should  be 
stated,  and  the  mistake  in  reducing  it  to  writing  alleged."  Perhaps  this  case, 
in  requiring  the  omission  or  insertion  of  the  stipulation  to  be  contrary  to  the 
intention  of  both  parties,  may  be  somewhat  more  restricted  than  the  rale 
adopted  in  the  text. 


374        FRY  ox  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

tliat  the  oath  of  the  defendant  that  he  had  inserted  in  his 
letter  a  term  winch  he  in  fact  omitted,  and  the  oath  of  his 
agent  that  he  had  received  instructions  to  the  like  effect,  in 
letting  the  house,  would  not  have  sufficed  ;  but  the  defend- 
ant having  in  his  letter  referred  to  the  offer  as  having  been 
previously  made  to  another  party,  and  that  party  swearing 
that  in  the  offer  as  made  to  him  the  term  omitted  in  the  sub- 
sequent offer  was  contained,  the  court  held  that  sufficient 
evidence  of  mistake  on  the  defendant's  part  had  been  given, 
and  allowed  the  defense.  (?c) 

§  740.  The  common  error,  or  mistake  of  both  parties,  as 
to  the  subject  matter  of  the  contract  is,  on  the  j^rincipies 
already  stated,  a  clear  ground  for  resisting  specific  perform- 
ance :  so  where  the  plaintiff  being  entitled  to  estates  during 
the  life  of  A.  entered  into  a  contract  with  regard  to  the 
timber  on  the  estates  with  the  remainderman  ;  and  it  subse- 
quently appeared  that  A.  was  at  the  time  dead,  though  this 
circumstance  was  unknown  to  both  parties  ;  Lord  Romilly, 
M.  R.,  and  afterwards  the  lords  justices  refused  specific 
performance  and  dismissed  the  bill  with  costs,  {x) 

§  750.  Further,  wiiere  both  parties  to  a  contract  are,  at 
the  time  of  the  contract,  in  mistake  or  error  as  to  the  mat- 
ters in  respect  of  which  they  are  contracting,  this  w^ill  not 
only  furnish  a  ground  for  resisting  specific  performance, 
but  enable  the  court  to  rescind  the  contract. (2/) 

§  75 1 .  Thus,  in  Calverley  v.  Williams, {z)  Calverley  brought 
his  bill  against  Williams  for  a  conveyance  of  seven  acres  of 
copyhold  land,  part  of  an  estate  sold  by  auction  and  pur- 
chased by  the  plaintiff  as  being  comprehended  in  the  adver- 
tisement of  the  sale,  and  described  as  in  the  possession  of 
Groombridge.  The  defendant  resisted  this  claim,  on  the 
ground  that  he  did  not  intend  to  include  those  seven  acres, 
or  know  that  they  were  in  the  possession  of  Groombridge. 
Lord  Thurlow,  in  givina:  judgment,  said,  "No  doubt,  if  one 
party  thought  he  had  purchased  bona  fide,  and  the  other 
party  thought  he  had  not  sold,  that  is  a  ground  to  set  aside 

(w)  Wooci  V.  Scxrth,2  K.  &  J.,  33.  completed  contract,  give  relief  against  a  com- 

ix)  Cochrane  v.  Willis.  34  Beav.,  359;  T>  R.  mon  mistake  in  the  same  wav  as  it  would 

lCh.,58.    Cf.  perTurner.L.  J.,ln  Murrellv.  against  traud.    01.  Lcuty  v.  llillas,  2  Ue  G. 

Goodvear,  1  De  G.  F.  &  J..  449.  &  .1  ,  110. 

(y)  See  Torrance  v    Bolton,  L.  R.  14  Eq  ,  (z)  1  Ves   Jun.,  210;  per  Lord  Ersklne  In 

124;  8Ch.,ll?.    In  Jones  v,  Clifford  (3  Ch.  Stapylton  v.  Scott,  13  Ves.,  4i7.     See,  too» 

D.,  792),  Hall,  V.  C.,  intimated  the  opinion  Davis  v.  Shepherd,  L.  R.  1  Ch.,410;  Price  v. 

that  the  court  would,  even  in  the  case  of  a  Ley,  4  Glff.,  235,  affirmed  11  W.  K  ,  475. 


MISTAKE.  375 

the  contract,  that  neither  party  may  be  damaged  ;  because 
it  is  impossible  to  say,  one  shall  be  forced  to  give  that  price 
for  part  only  which  he  intended  to  give  for  the  whole,  or 
that  the  other  shall  be  obliged  to  sell  the  whole  for  what  he 
intended  to  be  the  price  of  part  only.'" 

§  752.  Again,  where  both  vendor  and  purchaser  of  an 
alleged  estate  in  fee  in  remainder  on  an  estate  tail,  were 
ignorant  that  at  the  time  the  tenant  in  tail  had  suffered  a 
recovery,  so  that,  in  fact,  no  estate  in  remainder  existed, 
the  court  rescinded  the  contract,  (a) 

And  w^here  A.  proposed  certain  terms  of  assurance  to  the 
agent  in  London  of  a  Scotch  insurance  office,  and  by  mistake 
wrote  down  other  terms  in  his  proposal,  to  which  proposal 
the  Scotch  office  assented,  the  court  at  the  instance  of  A. 
(refusing  to  reform  the  contract)  rescinded  it,  and  directed 
the  repayment  of  the  premiums  paid.  (5) 

§  733!  In  a  case  brought  before  the  House  of  Lords  on 
appeal  from  Ireland,  the  appellant  believing  himself  to  be 

(a)  Hitchcock  v.  Giddlngs,  4  Pri.,  135.  (b)  Fowler  v  Scottish  Equitable  Liie  Insur- 

ance Society,  28  L.  J.  Ch.,  '225;  7  W.  R.,  5. 


1  So  where  the  consideration  of  a  covenant  to  pay  an  annuity,  was  the  con- 
veyance to  the  covenantor  of  a  tract  of  land  on  the  right  bank  of  the  Ohio 
river,  stated  to  embrace  a  coal  mine,  and  the  sole  inducement  to  the  purchase 
was  the  supposed  existence  of  the  coal  mine,  and  it  was  finally  ascertained  that 
no  coal  mine  was  embraced  within  the  bounds,  equity  enjoined  perpetually  a 
prosecution  at  law,  to  recover  the  annuity.  Dale  v.  Roosevelt,  5  John.'s  Ch., 
164:  S.  C,  2  Cow.,  129.  In  Marvin  v.  Bennett,  8  Paige,  312,  although  relief 
was  denied  in  that  particular  case,  because  neither  party  professing  to  know  the 
exact  quantity  of  land  to  be  conveyed,  the  words  7nore  or  less  were  inserted  in 
the  deed  for  the  express  purpose  of  covenng  any  deficiency  that  there  might 
be,  it  was  distinctly  said  by  the  chancellor  that  courts  of  equity  give  relief  in 
cases  of  mutual  mistake,  unaccompanied  by  fraud,  when  the  property  which 
one  party  intended  to  sell,  and  the  other  intended  to  buy,  did  not  in  fact  exist; 
or  where  the  subject  matter  of  the  sale  is  so  materially  variant  from  what  the 
parties  supposed  it  to  be,  that  the  substantial  object  of  the  sale  and  purchase 
entirely  fails.  The  rule  is  otherwise  where  the  parties  cannot  be  put  in  statu 
quo.  Thus,  where  land  was  sold  by  an  agent  of  the  owner,  who,  by  mistake, 
included  in  the  conveyance  an  adjoining  lot,  which  he  «nd  the  purchaser  siip- 
posed  to  be  the  property  of  his  principal,  but  which  was  not  his,  and  the  prin- 
cipal executed  the  deed  without  detecting  the  error,  and,  afterward,  upon 
discovering  the  mistake,  filed  a  bill  for  correction,  it  was  held  that,  because  the 
parties  could  not  be  placed  in  statu  quo,  the  sale  could  not  be  rescinded ;  and 
consequently  that  the  bill  could  not  be  supported.  Rankin  v.  Atherton,  3 
Paio-e,  143.  In  Keyton  v.  Brawford,  5  Leigh,  39,  by  the  mistake  of  both  par- 
ties? the  description  of  boundaries  of  land,  in  a  deed  of  conveyance,  included 
land  of  a  conterminous  proprietor,  and  the  grantee  took  possession  and  occu- 
pied such  land  as  the  grantor  had  before  occupied.  It  was  held  that  the  mis- 
take in  the  descriptionln  the  deed  should  be  corrected,  but  that  the  vendee  was 
not  entitled  to  any  relief  on  account  of  the  land  so  by  mistake  included  in  the 
conveyance.  See,  also,  Long  v.  Israel,  9  Leigh,  556,  and  Irick  v.  Fulton,  8 
Gratt.,  193. 


376        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

a  stranger  to  a  fishery,  agreed  to  take  a  lease  of  it ;  the 
respondents  believing  themselves  to  be  entitled  to  the 
property  agreed  to  grant  the  lease ;  it  turned  out  that 
the  appellant  was  entitled  to  the  property  and  not  the  re- 
s])ondents,  and  the  house  declared  that  tlie  contract  was 
entered  into  by  the  parties  to  it  under  mistake  and  in  ignor- 
ance of  the  actually  existing  rights  and  interests  of  the  par- 
ties in  the  fishery,  and  that  the  contract  was  not  binding  in 
equity  upon  the  appellant  and  respondents,  but  ought  to  be 
set  aside  subject  to  certain  terms  which  the  special  circum- 
stances of  the  case  and  the  principles  of  good  conscience 
were  held  to  impose,  (c) 

§  754.  But  where  neither  party  to  the  contract  is  in  error 
as  to  the  matters  in  resx)ect  of  which  they  are  contracting, 
and  there  is  an  actually  concluded  contract,  but  there  is  an 
error  common  to  both  the  loarties  in  the  reduction  of  the 
contract  into  writing,  there  the  court  interferes  for  the  pur- 
pose of  refonning  the  contract,  and  not  of  rescinding  it.(<:Z) 
For  by  so  doing  neither  party  will  be  damaged ;  whereas, 
by  enforcing  it  as  it  stood,  one  party  w^ould  be  necessarily 
injured ;  and  by  rescinding  it,  both  would  be  deprived  of 
the  benefit  of  the  contract.' 

(c)  Cooper  v.  Phlbbs,  17  Ir.  Ch.  R.,  73;  L.    Wichelhaus,  2  H.  &  C,  906;  Earl  Beauchamp 
R  2  H.  L.,  149;  Infra,  §  770.    See,  also,  Bing-    v.  Winn,  L.  R.  6  H.  L.,  223. 
ham  V.  Bingham,  1  Ves.  Sen.,  126;  Raffles  v.        (d)  Murray  v.  Parker,  19  Beay.,  305. 

'  The  interposition  of  a  court  of  chancery  to  correct  mistakes,  by  ordering  a 
proper  deed  to  be  executed,  according  to  the  true  intent  of  the  parties,  is  a  very 
ancient  doctrine.  If,  on  inquiry,  it  appears  that  tlie  instrument  does  not  con- 
tain what  tlie  parties  intended  it  should,  and  understood  that  it  did,  it  may  be 
reformed  by  aliunde  proof,  so  as  to  make  it  the  evidence  of  what  was  the  true 
bargain  between  the  parties.  It  is  wholly  immaterial  from  what  cause  the  de- 
fective execution  of  the  intent  of  the  parties  arose.  And  mistakes  of  scrive- 
ners in  drawing  deeds  or  agreements,  will  be  corrected,  even  against  bona  fide 
creditors  of  the  grantor.  Wj^che  v.  Greene,  16  Geo.,  49;  Alexander  v.  New- 
ton, 2  Gratt.,  266;  Parham  v.  Parham,  6  Hump.,  287;  Perkins  v.  Dickinson,  3 
Gratt ,  '635;  Rogers  v.  Atkinson,  1  Kelly,  12;  Collier  v.  Lanier.  1  id.,  238; 
Wooden  v.  Haviland,  18  Conn.,  101;  Clopton  v.  Martin,  11  Ala.,  187;  Webster 
V.  Harris,  16  Ohio,  490;  Best  v.  Stow,  2  Sand.'s  Ch.,  298;  Mosby  v.  Wall,  23 
Miss.,  81;  Pugh  v.  Chesseldine,  11  Ohio,  109;  Willis  v.  Henderson.  4  Scam., 
13;  Hunt  v.  Rousmanier,  1  Pet.,  1 ;  Chamberlain  v.  Thompsons,  10  Conn.,  243; 
eobb  V.  Preston,  2  Root,  78;  Chapman  v.  Allen,  Kirby,  399.  In  Ohio  this 
remedy  is  at  law.  Carr  v.  Williams,  10  Ohio,  223.  Of  course,  as  equity  has 
no  jurisdiction  in  ca.ses  of  mistake  in  Massachusetts,  error  in  the  reduction  of 
an  agreement  to  writing  is  necessarily  excluded ;  and  the  court  will  also  refuse 
80  to  amend  agreements  as  incidental  to  its  jurisdiction  in  regard  to  disputes 
beiweeu  parties.  Leach  v.  Leach.  18  Pick.,  68.  Mistakes  in  instruments  will 
be  corrected  against  sureties  as  well  as  others.  Butler  v.  Durham,  3  Ircd.'s  Ch., 
589;  Newcomer  v.  Kline,  11  Gill.  &  J.,  457.  But  it  seems  that  a  mistake  will 
not  be  corrected  to  the  prejudice  of  innocent  parties,  who  had  no  notice  of  the 
mistake.     United  States  v.  Munroe,  5  Ma.son,  572. 


MISTAKE.  377 

§  755.  Accordingly,  in  a  case  already  stated,  where  the 
question  was  whether  a  certain  seven  acres  were  or  were  not 
included  in  the  contract,  Lord  Thurlow,  after  stating  that  if 
the  parties  to  the  contract  had  mistaken  each  other  in  this 
respect,  it  must  be  rescinded,  said  :  "Upon  the  other  hand, 
if  both  understood  the  whole  was  to  be  conveyed,  it  must  be 
conveyed.  But  again,  if  neither  understood  so — if  the  })uyer 
did  not  imagine  he  was  buying,  any  more  than  the  seller 
imagined  he  was  selling,  this  part,  then  this  i:)retence  to 
have  the  whole  conveyed  is  as  contrary  to  good  faith  upon 
his  side,  as  the  refusal  to  sell  would  be  in  the  other  case."(^) 

§  756.  The  jurisdiction  of  the  court  in  this  respect  was 
clearly  asserted  by  Lord  Hardwicke  in  the  case  of  Henkle  v. 
Royal  Exchange  Assurance  Co.,(/')  which  was  a  bill  seek- 
ing, after  the  loss,  so  to  rectif;^  a  iDolicy,  on  the  ground  of 
common  mistake,  as  to  turn  the  loss  on  the  insurer,  which 
but  for  such  variation  must  have  been  borne  by  the  insured. 
"IS'o  doubt,"  said  his  lordship,  "but  this  court  has  juris- 
diction to  relieve  in  respect  of  a  plain  mistake  in  contracts 
in  "v^Titing,  as  well  as  against  frauds  in  contracts  :  so  that  if 
reduced  into  writing  contrary  to  intent  of  the  parties,  on 
proper  proof  that  would  be  rectified :"  but  for  want  of  such 
proper  proof  the  bill  was  dismissed. 

§  757.  In  another  case,  before  the  same  judge,  the  captain 
of  an  East  India  ship,  by  articles  of  agreement,  bargained 
and  sold  all  his  china-ware  and  merchandize  brought  home 
in  his  last  voyage  to  the  defendant :  the  articles  of  agree- 
ment were  drawn  u^j,  from  minutes  made  by  the  parties,  by 
an  attorney,  who,  misunderstanding  the  transaction,  drew 
up  the  articles  in  an  erroneous  and  absurd  manner :  the 
captain,  who  was  the  party  aggrieved  by  the  error,  brought 
his  bill  for  an  account  of  what  was  due  on  the  contract,  and 
insisted  on  its  rectification :  he  was  allowed  to  give  parol 
evidence  of  the  error  and  of  the  usage  of  trade,  to  show  the 
nature  of  the  real  transaction  and  the  consequent  mistake 
in  the  articles,  (r/) 

§  758.  It  follows,  from  the  nature  of  the  jurisdiction,  that 
there  can  be  no  rectification  where  there  is  not  a  prior  actual 
contract  by  which  to  rectify  the  written  document :  so  that, 

(e)  Ca'verley  v.  Williams,  1  V(  s.  Jun.,  210.       (g)  Baker  v.  Paine,  1  Ves.  Sen.,  4.';6;  6  Ves., 
(/;  1  Ves.  Sen.,  317.  336  n. 


378        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

for  instance,  a  policy  cannot  be  rectified  {h)  by  the  slip,  be- 
cause the  slip  constituted  no  contract,  and  there  was  no 
contract  till  the  policy  was  signed  and  the  premium 
paid.(/) 

§  759.  It  equally  follows,  that  the  mistake  of  one  party 
to  a  contract  can  never  be  a  ground  for  compulsory  rectifi- 
cation. It  may  be  a  reason  for  setting  the  whole  thing 
aside,  but  never  for  imposing  on  one  party  the  erroneous 
conception  of  the  other.  (/) 

§  760.  However,  in  two  cases  decided  by  Lord  Romilly, 
M.  R.,  in  each  of  which  the  mistake  was,  according  to  the 
defendant,  on  the  side  of  the  plaintiff  only,  and  the  deed 
of  conveyance  had  been  executed,  his  lordship  held  that, 
though  the  plaintiff  was  not  entitled  to  compel  rectification, 
the  defendant  must  elect  between  having  the  transaction  an- 
nulled altogether  and  submitting  to  the  rectification  of  the 
deed  in  accordance  with  the  plaintiff's  intention. (A*) 

§  761.  Parol  evidence  is  admitted  to  show  the  common 
mistake  of  both  parties  in  reducing  the  contract  into  writ- 
ing, and  as  the  ground  for  rectifying  it.'     "I  think  it  im- 

(h)  See  Morocco  Land,  etc.,  Trading  Co.  (k)  Garrard  v.  Frankel.  30Beav.,445;  Har- 

(Llmited)  v.  Fry,  13  W.  R.,  310.  ris  v.  Pepperell,  L.  R.  5  Eq.,  1.    In  his  judg, 

(I)  Mackenzie  v.  Coulaon,  L.  R  8  Eq.,  368  ment  in  the  latter  case  Lord  Romllly,  M.  R.- 

(j)  Sells  V.  .>ell8, 1  Dr.  &  Sm.,  42;  Rooke  v.  points  out  the  distinction  between  the  decls- 

Lord  Kensington,  2  K.  &  J.,  753;  Thompson  ions  in  Garrard  v.  Frankel  and  Earl  of  Brad- 

V.  Whitmore,  IJ.  &H.,268;  Earl  «f  Bradford  ford  v.  Earl  of  Romney  (30  Beav.,  431). 
V.  Earl  of  Romney,  30  Beav  ,  431. 

'  Season  for  reforming  written  instrument  by  parol  ]  "  The  principle  on  whicli 
courts  of  equity  rectify  an  instrument  so  as  to  enlarge  its  operation,  or  to  con- 
vey or  enforce  rights  not  found  in  the  writing  itself,  and  make  it  conform  to 
the  agreement  as  proved  by  parol  evidence,  on  the  ground  of  an  omission  by 
mutual  mistake  in  the  reduction  of  the  agreement  to  writing,  is,  as  we  under- 
stand it,  that  in  equity  the  previous  agreement  is  held  to  subsist  as  a  binding 
contract,  notwithstanding  the  attempt  to  put  it  in  writing."  Wells,  J.,  in 
Glass  V.  Hulbert,  102  Mass.,  24. 

Parolproof  to  refonmcriting  must  be  very  strong. ~\  "Where  it  is  sought  tore- 
form  a  written  instrument  on  the  ground  of  mistake,  by  parol,  the  evidence 
must  be  very  clear  and  positive.  It  must,  as  some  of  the" cases  say,  "leave  no 
doubt  of  the  mistake."  Lord  Eldon  said,  in  Marquis  of  Townshend  v.  Stand- 
groom,  6  Ves.,  333,  that  the  evidence  must  be  the  strongest  possible."  Kent, 
Ch.,  in  Gillespie  v.  Moon,  2  John.'s  Ch.,  585,  said,  after  a  careful  review  of  all 
the  then  law  on  this  subject:  "  The  ca.ses  concur  in  the  strictness  and  diflSculty 
of  the  proof."  Lord  Thurlow  said,  in  Shelburne  v.  Inchiquin,  1  Bro.  C.  C., 
338,  "that  the  evidence  must  be  strong  and  irrefragable."  See  under  this 
head,  Hinkle  v.  Royal  Ex.  Ass.  Co.,  1  Ves.,  317;  Vonillon  v.  States,  25  L.  J. 
Ch.,  875;  Anderson  v.  Bacon,  1  J.  J.  Marsh.,  48;  Planque  v.  Guesnon,  15  La. 
An.,  312;  Guernsey  v.  Am.  Ins.  Co.,  17  Minn.,  104;  Brady  v.  Parker,  4  Ired.'s 
Eq,  430;  McDonald  v.  Starkev,  42  111.,  442;  Sawer  v.  Hovey,  3  Allen.  331; 
Goodell  V.  Field,  15  Vt.,  448;  Harrison  v.  Howard,  1  Ired.'s  Eq.,  407;  Huston 
v.  Xoble,  4  J.  J.  Marsh.,  130;  Watkins  v.  Stocket,  6  Har.  &  John.,  435;  Lau- 
derdale v.  Hallock,  7  Sm.  &  Marsh,  622;  Ross  v.  Wilson,  id.,  753;  Wurzburger 


MISTAKE.  379 

possible,"  said  Lord  Thurlow,  "to  refuse,  as  incompetent, 
parol  evidence  wliich  goes  to  prove  that  the  words  taken 
down  in  writing  were  contrary  to  the  concurrent  intention 
of  all  parties.  (Z) 

§  762.  But  in  order  thus  to  procure  the  rectification  of  a 
contract,  the  proof  must  be  clear,  irrefragable,  and  the 
"  strongest  possible,  "(m)  As  the  point  to  be  proved  is  that 
the  concurrent  intention  of  all  the  parties  to  the  contract 
was  different  from  that  expressed  by  the  written  contract, 
the  court  will  attentively  regard  the  admission  or  denial  of 
the  defendant  as  one  of  those  parties.  (;i)  It  need  scarcely 
be  added  that  the  court  will  only  act  on  parol  evidence  when 
satisfied  that  there  is  no  existing  writing  which  contains  the 
original  instructions  or  contract,  (o) 

§  763.  Where  there  is  a  writing  by  which  an  executed 
deed  is  to  be  rectified,  and  in  that  writing,  there  is  a  term 
in  respect  of  which  there  is  a  latent  ambiguity,  parol  evi- 
dence may  be  admitted  to  explain  it,  and  thus  assist  in  the 
rectification  of  the  deed.{p) 

§  764.  Mistakes  are  usually  divided  into  mistakes  of 
fact{q)  and  of  law.  The  former  kind  have  always  been 
held  to  give  occasion  to  the  jurisdiction  of  equity  in  mis- 
take. 

§  765.  As  regard  mistakes  of  law,  the  maxim  usually  re- 
ferred to  was  Ignorantia  legis  non  excusat ;  and  the  older 
authorities  seem  to  show  that  courts  of  equity  would  neither 
set  aside  contracts  for  mistake  in  law,(r)  nor  allow  such  mis- 
take to  be  set  up  as   ground  for    resisting  specific  per- 

(l)  In  Lady  Shelbourne  v.  Lord  Inchlquln,  Beav.,445;  Harris  v.  Pepperell,  L.  R.  5  Eq.,  1. 

1  Bro.  C.  C,  341.  (0)  Lackersteen  v.  Lackersteen,  30  L.  J. 

(m)  Henkle  V  Royal  Exchange  Assurance  Ch  ,5;  6  Jur.  (N.  S),  1111. 

Co.,1  Ves.  t^en  ,317;  per  Lord  Eldon  in  Mar-  (p)  Murray  v.  Parker,  19  Beav.,  305 

quis  Townshend  v.  Stangroom,  6  Ves  ,  333;  (q)  It  may  be  observed  thai  mistake  of  fact 

Vouillon  V.  States,  25  L.  J.  Ch.,  875;  27  L.  T.,  is  not  the  les*  a  ground  for  relief  because  the 

268;  Fallon  v.  Robins,  16  Ir.  Ch.  R.,  422.  person  who  has  made  the  mistake  had  the 

(n^  6  Ves  ,  334;  Mortimer  v.  Shorhall,  2  Dr.  means  of  knowledge.  Wlllmoit  v.  Barker,  15 

&  War.,  363,  374.     In  Pitcairn  v.  Ogboume,  2  Ch.  D  ,  97,  106. 

Ves.  Sen.,  375,  379,  the  evidence  was  consid-  (r)  Marshall  v.  CoUett,  1  Y.  &  C.  Ex.,  232, 

ered  su£&cient  to  overcome  the  defendant's  238;  Cockerell  v.  Cholmley.l  R.  &  My.,  418. 
denial.    See,   too,   Garrard   v.   Frankel,  30 

V.  Meric,  20  La.  An.,  415;  Bradford  v.  Union  Bank  of  Tenn.,  13  How.,  57; 
Hunter  v.  Bilyon,  30  111.,  228;  Selby  v.  Geine,  12  id.,  69;  Stine  r.  Sherk,  1 
Watts  &  Sersr.,  195;  Kurkenbeister  v.  Becket  41  111.,  172;  Clarey  v.  Babcock, 
41  id..  371;  Mills  v.  Lockwood,  42  id..  Ill;  McCloskey  v.  McCormick,  44  id., 
836;  Terson  v.  Atlantic  Mutual  Ins.  Co.,  40  Mo.,  33;  Sbrivcly  v.  Welcb,  2 
Oregon,  288;  Lyman  v.  United  Ins.  Co.,  17  John.,  373;  McMahon  v  Spangler, 
4  Rand,  51. 


380         FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

formance  of  contracts  in  other  respects  free  from  objec- 
tion, (.v)' 

§  760.  This  view  of  the  law  was  thus  stated  by  Lord 
Chehnsford  in  addressing  the  House  of  Lords  in  1858.  (^) 
"Mistake  is  undoubtedly  one  of  the  grounds  for  equitable 
interference  and  relief  ;  but  then  it  must  be  mistake  not  in 
matters  of  law,  but  a  mistake  of  facts.  The  construction 
of  a  contract  is  clearly  matter  of  law ;  and  if  a  party  acts 
upon  a  mistaken  view  of  his  rights  under  a  contract,  he  is 
no  more  entitled  to  relief  in  equity  than  he  would  be  at 
law.('?^) 

§  767.  With  the  authorities  referred  to  in  the  two  last 
preceding  sections  may  be  comjjared  those  others,  which 
show  that  a  misrepresentation  of  law,  at  least  if  innocently 
made,  does  not  bind  and  create  any  civil  liability.  (^)^ 

(s)  PuUen  V.  Ready,  3  Atk.,  587;  per  Lord  (t)  Midland  Great  Western  Railway  of  Ire- 
Alvanley,  M.  R.,  in  Gibbons  v.  Count,  4  Ves.,  land  v.  Johnson,  6  H.  L.  C,  SIO,  811. 
849;  Stockley  v.  Stocbley,  1  V.  &  B.,  23,  30;  (u)  See  Powell  v.  Smith,  L.  R.  14  Eq.,  85. 
Mildmay  v.  Hungerford,  2  Vern.,  243.     See,  (ri  Rashdall  v.  Ford,  L.  R.  2  Eq.,V50;  Beat- 
also,  Bilbie  v.  Luniley,  2  East.  469;  Croome  tie  v.  Lord  Ebury,  L.  R.  7  Ch  ,  777. 
V.  Ledlard,  2  My.  &  K.,:iol ;  Price  v.  Dyer,  17 
Ve9.,356. 

'  Mistake  as  to  the  operation  of  law.'\  Where  a  contract  lias  been  fairly  entered 
into  with  full  knowledge  of  all  the  facts,  a  mistake  of  the  law  will  not  in  gen- 
eral be  ground  for  resisting  the  specific  performance  of  such  contract.  Marshall 
V.  Collett,  1  Y.  &  C.  Ex.,  232,  238;  Mildmay  v.  Hungerford,  2  Vern.,  243;  Leed 
V.  Johnson,  25  L  J.  Exch.,  110;  Cockerell  v.  Cholmeley,  1  R.  &  My.,  418;  Pul- 
len  V.  Ready,  2  Atk.,  587;  Stockley  v.  Stockley,  1  V.  &  B.,  23,  30;'  Gibbons  v. 
Ganut,  4  Ves.,  489;  Melius  v.  Duke  of  Dovenshire,  16  Beav.,  257;  Midland  Gt. 
West  Co.  V.  Johnson,  6  H.  of  Lds.,  798;  Wooden  v.  Havelaud,  18  Conn.,  lUl; 
Bank  of  U.  S.  v.  Daniel,  12  Pet.,  32;  Lyon  v.  Richmond,  2  Johu.'s  Ch.,  60; 
Trigg  V.  Read,  5  Humph.,  529;  Genter  v.  Thorns,  1  Ired  's  Eq.,  195;  Shafer  v. 
Davis,  13  111.,  395;  Peters  v.  Florence,  38  Pa.  St.,  194;  McMurry  v.  St,  Louis 
Co.,  33  Mo.,  377;  Heilbron  v.  Bissell,  1  Bailey's  Ch.,  430;  Storrs  v.  Barker,  6 
John.'s  Ch.,  166;  Dow  v.  Rer,  Spear's  Ch.,  413;  Wentermute  v.  Snj'der,  2 
Green's  Ch.,  489;  Bell  v.  Steele,  2  Humph.,  148;  Shotwell  v.  Murray,  1  John.'s 
Ch.,  513:  Brown  V.  Armistead,  6  Rand.,  594;  State  v.  Reigert.  1  Gill.,  1;  Dill 
V.  Shahau.  35  Ala.,  694;  Gwynu  v.  Hamilton,  29  id.,  233;  Smith  v.  McDougall, 
2  Cal.,  586. 

'  A  distinction  has  been  taken  between  ignorance  of  the  law  and  mistake  of 
the  law,  which  has  caused  no  little  diversity  of  opinion,  and  created  considera- 
ble perplexity.  In  the  first  case,  it  has  been  said,  relief  will  be  granted;  in  the 
latter  it  will  not.  "We  take  it  to  be  the  settled  rule,  at  present,  that  no  such 
distinction  exists;  and  that  ignorance  of  the  law  and  mistake  of  the  law  are 
equally  considered  in  courts  of  equity  to  form  no  groundwork  for  relief.  A 
leading  case  in  this  country,  upon  this  question,  is  Champlin  v.  Laytin,  18 
W'end.,  409,  where  the  authorities  upon  the  point  in  view  were  considered  by 
Bronson,  J.  Landsdown  v.  Land.sdown,  Mosely,  364,  is  the  oldest  case  which 
has  sought  to  establi.sh  this  distinction.  The  case  was  this :  Tlie  second  of 
four  brothers  died,  and  the  eldest  and  youngest  both  claimed  the  estate.  They 
referred  the  question  to  a  school  master,  who  decided  that  the  youngest  was 
entitled  to  the  property,  because  lands  could  not  ascend.  Upon  this,  the  par- 
ties agreed  to  divide  the  estate  between  them,  and  the  eldest  brother  executed 
a  release.     The  chancellor  decreed  that  the  deed  should  be  delivered  up,  "be 


MISTAKE.  381 

§  768.  Recent  decisions,  however,  have  lessened,  if  not 
destroyed  the  importance  of  the  distinction  between  mis- 

ing  obtained  by  rilistake  and  misrepresentation.  The  facts  are  so  briefly- 
stated,  that  it  is  impossible  to  say,  with  certainty,  on  what  ground  the  decision 
proceeded.  If  there  was  any  intentional  misrepresentation  in  the  case,  either 
about  its  facts  or  law,  that  would  be  a  proper  ground  for  affording  relief;  and 
it  is  stated  in  a  report  of  the  case,  2  Jac.  &  Walk. ,  205,  that  the  complainant 
alleged  in  his  bill  that  he  had  been  surprised  and  imposed  upon  by  his  brother 
and  the  school  master.  And  Justice  Bronson  continues  further:  "In  there- 
port  by  Mosely,  Lord  Chancellor  King  is  made  to  say  that  the  maxim  of  law, 
ignorantia  juris  non  crcusat,  was  in  regard  to  the  public:  that  ignorance  cannot 
be  pleaded  in  excuse  of  crime,  but  did  not  hold  in  civil  cases.  Mosely  is  not  a 
book  of  very  high  authority  5  Burr.,  2639;  3  Anstr.,  861;  and  I  think  it  much 
more  probable  that  the  case  turned  on  the  ground  of  surprise  and  imposition, 
than  that  the  chancellor  made  use  of  the  language  imputed  to  him."  Chief 
Justice  Marshall  cited  this  case  in  Hunt  v.  Rousmanier,  when  first  before  the 
court,  8  Wheat.,  214,  with  the  qualifying  remark,  'if  it  be  law,'  and  he  added, 
that  there  were  certainly  strong  objections  to  the  decision.  Mr.  Justice  Story, 
in  commenting  on  the  language  imputed  to  Lord  Chancellor  King,  says  it  is 
utterly  irreconcilable  with  the  well-established  doctrine,  both  of  courts  of  law 
and  courts  of  equity."  It  may  then  be  submitted  that  the  distinction  before  us 
receives  no  support  whatever  "from  the  case,  which  has  been  relied  upon  in  its 
defense.  Willard's  Eq.  Jur.,  p.  60;  Lawrence  v.  Beaubien,  2  Bailey's  S.  C.  R., 
623,  is  a  decision  directly  to  the  effect  that  such  a  distinction  should  be  main- 
tained, and  relief  granted  in  the  one  case  and  refused  in  the  other.  Bronson,  J., 
is,  however,  of  the  opinion  that  the  decision  in  that  case  "  rests  upon  no  solid 
foundation."  And  in  Haven  v.  Foster,  9  Pick.,  112,  the  point  was  elaborately 
discussed  by  counsel;  and  the  court,  though  deciding  the  case  upon  other 
grounds,  clearly  held  that  the  principle  ignorantia  juris  non  excusat  was  appli- 
cable alike  to  civil  and  criminal  proceeding;  that  every  man  is  presumed  to 
know  the  law  of  the  land.  In  Shotwell  v.  Murray,  1  John.'s  Ch.,  512,  Kent, 
Ch. ,  holds  ignorance  of  the  law  to  be  a  very  dangerous  plea,  whether  applied 
to  rules  of  civil  conduct  or  to  duties  of  natural  and  moral  obligation.  The 
case  of  Hunt  v.  Rousmanier,  8  Wheat.,  174,  it  is  thought  cannot  be  quoted  as 
an  authority  to  uphold  the  existence  of  any  distinction  between  ignorance  of 
the  law  and  mistake  of  the  law.  Willard's  Eq.  Jur. ,  p.  62.  There  are,  how- 
ever, other  cases;  and  these  are  considered  by  Paige,  senator,  in  Champlin  v. 
Laytin,  to  a  different  effect  from  the  opinion  of  Justice  Bronson.  "I  am  pre- 
pared," says  the  learned  senator,  "  to  assent  to  the  proposition  of  the  vice-chan- 
cellor, that  a  contract  entered  into  under  an  actual  mistake  of  the  law  on  the 
part  of  both  the  contracting  parties,  by  which  the  object  and  end  of  their  con- 
tract, according  to  its  intent  and  meaning,  cannot  be  accomplished,  is  as  liable 
to  be  set  aside  as  a  contract  founded  in  mistake  of  matters  of  fact.  The  proper 
distinction,  in  my  judgment,  is  taken  in  tlie  case  of  Lawrence  v.  Beaubien,  2 
Bailev's  (S.  C.  R.),  623;  Lowndes  v.  Chisholm,  2  McCord's  (S.  C.  R.),  455  (1827), 
and  Executors  of  Hopkins  v.  Maryck,  1  Hill.'s  Ch.  Cas.  (S.  C.  R.),  250  (1833), 
between  a  mistake  of  the  law  and  mere  ignorance  of  the  law.  This  question, 
it  seems  to  me,  was  in  those  cases  correctly  decided."  *  *  *  Johnson,  J., 
in  Lawrence  v.  Beaubien,  2  Bailey,  623,  says:  "All  the  difficulty  and  confusion 
which  have  grown  out  of  the  application  of  the  maxim  ignorantia  juris^  neminem 
excusat,  appears  to  me  to  have  originated  in  confounding  the  terms  ignorance 
and  mistake.  The  former  is  passive  and  does  not  presume  to  reason,  but  the 
latter  presumes  to  know,  when  it  does  not,  and  supplies  palpable  evidence  of 
its  existence."  He  further  says,  in  Executors  of  Hopkins  v.  Maryck,  "that  a 
mere  ignorance  of  the  law  is  not  susceptible  of  proof,  and  therefore  cannot 
be  relieved ;  but  that  a  mistake  of  law  may  be  proved,  and,  when  proved,  re- 
lief may  be  afforded."  Sparks  v.  White,  7  Humph.,  86,  seems,  at  least,  in 
some  degree,  to  present  the  true  doctrine  of  equity  upon  this  point.  Mere  ignor- 
ance of  the  law,  it  is  there  said,  will  not  authorize  a  comt  of  chancery  to  set 
aside  a  contract ;  but  if  that  ignorance  be  superinduced  by  the  other  party ,_  or  if 
there  be  a  misplaced  confidence,  or  if  advantage  be  taken  of  weakness  of  Intel- 


382        FRY  ox  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

takes  of  fact  and  of  law.  In  Stone  v.  Godfrey, (-W))  Turner, 
L.  J.,  said  that  lie  felt  no  doubt  that  the  court  had  power 
to  relieve  against  mistakes  in  law  as  well  as  ijiistake  in  fact. 

(w)  5  De  G.  M.  &  G.,  76. 


lect,  these,  with  other  influences,  united  with  ignorance  of  the  law,  will  be 
suflQcient  to  justify  the  court  in  so  doing.  See  Sims  v.  Lyle,  4  W.  C.  C.  R., 
320.  iVIistake  of  the  law,  as  a  rule,  whatever  may  be  the  distinction  between 
it  and  ignorance  of  the  law,  if  any  there  may  be,  is  not  a  ground  of  equitable 
relief.  Boebe  v.  Swartwout,  3  Gilm.,  162;  Shotwell  v.  Murray,  1  John.'s 
Ch.,  512;  Wintermute  v.  Snyder,  2  Green's  Ch.,  489;  Good  v.  Herr,  7  Watts 
&  Serg  ,  253;  Trigg  v.  Reade,  5  Humph.,  529;  Broadwell  v.  Broadwell,  1 
Gilm.,  599;  Champlin  v.  Laytin,  18  Wend.,  412;  AVillard's  Eq.  Jur.,  pp.  59, 
60;  Story's  Eq.  Jur.,  §  140.  It  is  not  to  be  denied,  however,  that  there  are 
cases  to  the  contrary.  In  Crosier  v.  Acer,  7  Paige,  143,  Walworth.  Ch..  ex- 
pressed no  decided  opinion.  His  words  were — "if  this  court  can  relieve 
against  a  mistake  in  law  in  any  case  where  the  defendant  has  been  guilty  of 
no  fraud  or  unfair  practice,  which  is  at  least  very  doubtful,  it  must  be  in  a  case 
in  which  the  defendant  has,  in  reality,  lost  nothing  whatever  by  the  mistake, 
and  where  the  parties  can  be  restored  to  the  same  situation,  substantially,  in 
which  they  were  at  the  time  the  mistake  happened."  See,  also,  Hall  v.  Reed, 
2  Barb.'s  Ch..  500.  But  Lowndes  v.  Chisholm,  2  McCord's  Ch.,  455;  Hunt  v. 
Rousmauier,  8  Wheat.,  174;  Evantsv.  Strode.  11  Ohio,  480;  Beardsley  v.  Knight, 
10  Verm.,  185;  Goodell  v.  Field,  15 id.,  448;  McNaughten  v.  Partridge,  11  Ohio, 
223;  Alexander  v.  Newton,  2  Gratt.,  266;  Parham  v.  Parham,  6  Humph.,  287, 
are  sufficiently  clear.  Many  of  these  cases  may,  however,  have  well  been  de- 
cided upon  other  grounds;  as,  for  instance,  the  error  of  the  draughtsman  in 
reducing  the  contract  to  writing.  And,  indeed,  it  has  been  said  that  whatever 
exceptions  there  may  be  to  the  general  rule,  that  equity  will  not  relieve  upon 
the  ground  of  mistake  of  law,  they  will  be  found  to  have  something  peculiar  in 
•their  character.  Bank  of  United  States  v.  Daniel,  12  Pet.,  32;  Hunt  v.  Rous- 
mainier,  1  id.,  115.  But  Paige,  Senator,  18  Wend.,  423,  contends  strenuously 
for  relief  in  these  cases.  "I  cannot  see  any  good  sense,"  said  he,  "  in  the  dis- 
tinction of  granting  relief  against  mistakes  of  fact,  and  refusing  it  in  cases  of 
acknowledged  mistakes  at  law.  Both,  in  my  judgment,  ought  to  be  placed 
upon  the  s'ame  footing.  If  the  principles  of  justice  require  relief  in  one  case, 
they  equally  do  in  the  other."  The  vice-chancellor.  Sir  John  Leach,  in  Naylor 
v.  Wench,  1  Sim.  &  Stu.,  555,  says:  "  ;f  a  party,  acting  in  ignorance  of  a  plain 
and  settled  principle  of  law,  is  induced  to  give  up  a  portion  of  his  indisputable 
property  to  another,  under  the  name  of  compromise  a  court  of  equity  will  relieve 
him  from  the  effect  of  his  mistake."  Although  the  case  of  Hunt  v.  Rousmauier, 
ultimately  turned  on  another  question,  1  Peters'  U.  S.  R.,  13,  yet  the  opinion  of 
Chief -Justice  Marshall  in  that  case,  as  reported  in  8  Wheat.,  205,  clearly  shows 
which  way  was  the  inclination  of  his  mind.  He  says,  speaking  of  the  case  of 
Landsdown  v.  Landsdown,  Mosely,  364,  "that,  as  a  case  in  which  relief  has 
been  granted  on  a  mistake  in  law,  cannot  be  entirely  disregarded.  And  he 
further  says :  '  'Although  we  do  not  find  the  naked  principle  that  relief  may  be 
granted  on  account  of  ignorance  of  law,  asserted  in  the  books,  we  find  no  case 
in  which  it  has  been  decided  that  a  plain  and  alleged  mistake  in  law  is  beyond 
the  reach  of  equity.  We  are  unwilling,  where  the  effect  of  the  instrument  is 
acknowledged  to  have  been  entirely  misunderstood  by  both  parties,  to  say  a 
court  of  equity  is  incapable  of  affording  relief."  And  Washington,  J.,  in  the 
same  case,  1  Peters,  15,  in  the  conclusion  of  his  opinion,  says:  "It  is  not  the 
intention  of  the  court  to  lay  it  down  that  there  may  not  be  cases  in  which  a 
court  of  equity  will  relieve  against  a  plain  mistake  arising  from  ignorance  of 
law."  It  seems,  however,  that  the  learned  senator  proposed  the  adoption  of 
certain  qualifications.  "If  relief,"  it  is  said  in  his  opinion,  "was  to  be  granted 
upon  every  allegation  of  a  mere  ignorance  of  the  law,  great  embarrassments 
would  arise  in  discriminating  between  the  cases  of  actual  ignorance  and  those 
of  feigned  ignorance.  So  where  the  ignorance  or  mistake  of  the  law  is  only  in 
one  of  the  contracting  parties,  and  the  other  party  has  not  taken  any  advantage 


MISTAKE.  383 

§  769.  Acting  on  tliis  view,  Lord  Hatheiiey  (wlien  Yice- 
Cliancellor)  remitted  to  Ms  original  rights  against  Company 
A.,  a  creditor  of  that  company  who  had  given  up  that  right 
in  consideration  of  the  substituted  security  of  Company 
B.,  which  purchased  the  business  of  the  first  Company  A., 
when  that  purchase  was  held  void  as  ultra  mres.ix) 

§  770.  The  point  has  twice  come  before  the  House  of 

(a;>  Re  Saxon  Life  Assurance  Co.,  Anchor  Case,  2  J.  &  H  ,  408. 

of  the  circumstances  in  making  the  contract,  it  would  not  be  proper  to  grant 
reUef  against  such  ignorance  or  mistake ;  but  where  a  contract  is  entered  into 
imder  an  actual  and  reciprocal  mistake  of  law  in  both  the  contracting  parties, 
hy  which  the  manifest  intention  of  the  parties  cannot  be  accomplished,  and 
which  ex  (s,que  et  bono  ought  not  to  be  binding,  and  where  such  mistake  is  either 
acknowledged,  or  undoubted  evidence  of  it  is  produced,  I  cannot  see  any  good 
reason  why  relief  should  not  be  granted  in  equity  to  the  same  extent  as  is  done 
in  cases  of  mistake  in  matter  of  fact.     The  principles  of  natural  justice  require 
that  the  like  relief  should  be  granted  in  both  cases.     I  would  qualify  the  rule, 
however,  as  was  done  by  Johnson,  J.,  in  Lawrence  v.  Beaubien,  and  deny  relief 
if  it  appeared  that  the  contract  was  the  compromise  of  a  doubtful  right,  or  was 
entered  into  as  a  speculating  bargain.     By  adopting  the  rule  with  these  qualifi- 
cations, in  my  judgment,  no  mischievous  consequences  would  follow,  but  on 
the  contrary,  the  interests  of  justice  would  be  advanced."    It  may  not  be  amiss 
to  observe  that  in  the  very  case  of  Naylor  v.  Winch,  cited  in  this  opinion,  and 
which  so  broadly  lays  down  the  law  in  reference  to  compromises,  relief  was 
denied,  because  the  claim  was  doubtful,  and  the  compromise  was  after  due  de- 
liberation.    Story's  Eq.  Jur.,  §  121  (note  1).     And  it  is  also  to  be  remembered 
that  the  positions  of  Chief -Justice  Marshall  were  greatly  shaken  by  Washington, 
J.,  when  the  case  came  before  him,  on  appeal  to  the  supreme  court.    WiUard  s 
Eq.  Jur.,  63.     The  words  of  Washington,  J.,  cited  also  in  the  course  of  the 
opinion,  do  not  necessarily  imply  that  a  court  of  equity  will  grant  relief  in  usual 
cases  of  a  mistake  of  law.     They  may  have  been  used  in  order  to  include  such 
cases  as  Mortimer  v.  Pritchard,  1  Bailey's  Ch.,  505,  where  a  person  lent  money 
at  a  usurious  rate  of  interest  in  mistake  of  the  law,  and  the  court  granted  him 
relief  because  usury  consists  in  the  corrupt  intent  to  take  illegal  interest :  and  this 
could  not  exist  without  a  knowledge  of  the  law.     The  dangers  of  breaking 
through  the  rule  as  it  now  stands,  together  with  its  general  practical  utihty  and 
equity,  are  best  considered  by  Bronson,  J.     18  Wend.,  412.     Nevertheless,  in 
South  Carohna,  Kentucky  and  Maryland,  men  are  not  chargeable  for  want  ot 
knowledge  of  the  law,  and  equity  will  relieve  parties  from  their  own  acts  and 
deeds,  fairly  done,  on  a  full  knowledge  of  facts,  though  under  a  mistake  of  law. 
Lowndes  v.  Chisholm,  2  McCord's  Ch.,  255;  Hopkins  Ex'rs  v.  Maryck,  1  Hill,  s 
Ch.,  257;  Drew  v.  Clarke,  Cooke,  374;  Fitzgerald  v.  Peck,  4  Litt.,  12o;  Laraat 
V.  Rowley  6  Har.  &  John.,  500;  and  see  cases  collected  in  C.  &  H.  Notes.  1483, 
1484-  Gilbert  v.  Gilbert,  9  Barb  ,  534;  Arthur  v.  Arthur,  10  id.,  9;  Mathews  v. 
Terwilliger  3  id.,  50;  Dupre  v.  Thompson,  4  id.,  279.     There  are  cases  ot  ap- 
parent mistake  of  law,  in  respect  of  titles,  where  relief  has  been  grant^ed,  but 
they  are  cases  of  a  mixed  nature;  partly  mistake  of  fact.     Story,  J5§  i^\l%^' 
122.     Money  paid,  with  a  full  knowledge  of  facts,  cannot  be  recovered  back, 
on  the  ground  that  the  party  was  ignorant  of  the  law.    Bilbie  v.  Lumley  -  ±-ast, 
469;  Lowrey  v.  Bordieu,  Doug., 467,  per  Buller,  J. ;  Stevens  v.  Lynch  12  Last, 
38-  Busbane  v.  Dacres,  5  Taunton,  144;  Clark  v.  Dutcher,  9  Cowen,  674;  Jones 
V  Watkins,  1  Stewart,  81.    Where  a  party  has  committed  a  tort,  in  consequence 
of  a  mistake  of  law,  and  the  other  party  is  free  from  fault,  equity  will  not  re- 
lieve the  former  from  the  legal  consequences  of  his  act.     Pettcs  v.  Bank  ot 
Whitehall,  17  Verm.,  435.    Though  a  party  may  not  be  reheved  f roni  a  mistake 
of  law,  yet,  if  no  new  equities  have  intervened,  the  reverse  will  be  the  case  in 
reference  to  a  rule  of  court.     Gardiner  v.  Schermerhorn,  1  Clarke,  101 ;  Gaul  v. 
Miller,  3  Paige,  192;  Pratt  v.  Adams, J  id.,  61o. 


384        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

Lords  in  late  years.  In  Cooper  v.  Phibbs,(?/)  where  the 
appellant  believing  himseK  to  be  a  stranger  to  his  own  land 
agreed  to  take  a  lease  of  it,  and  was  relieved  from  his  mis- 
take, his  belief  was  founded  on  an  erroneous  impression  of 
the  effect  of  certain  documents  of  title ;  and  Lord  Westbury 
said:  "It  is  said  Ignorantia  juris  liaud  excusat,  but  in 
that  maxim  the  word  jus  is  used  in  the  sense  of  denoting 
general  law,  the  ordinary  law  of  the  country.  But  when 
the  word,;i^5  is  used  in  the  sense  of  denoting  a  private  right, 
that  maxim  has  no  application.  Private  right  of  ownership 
is  matter  of  fact ;  it  may  be  the  result  also  of  matter  of  law  ; 
but  if  parties  contract  under  a  mutual  mistake  and  misap- 
prehension as  to  their  relative  and  respective  rights,  the  re- 
sult is,  that  that  agreement  is  liable  to  be  set  aside  as  having 
proceeded  upon  a  common  mistake." (£:) 

§  771.  In  Earl  Beauchamp  v.  Winn,  Lord  Chelmsford,  in 
addressing  the  house,  said,  "that  the  ignorance  imputable 
to  the  party  was  of  a  matter  of  law  arising  upon  the  doubt- 
ful construction  of  a  grant.  This  is  very  different  from  the 
ignorance  of  a  well-known  rule  of  law  ;  and  there  are  many 
cases  to  be  found  in  which  equity,  upon  a  mere  mistake  of 
the  law,  without  the  admixture  of  other  circumstances,  has 
given  relief  to  a  party  who  has  deait  with  his  property  under 
the  influence  of  such  mistake,  (a) 

§  773.  It  seems  to  follow  that,  at  least  as  a  defense  to 
specific  performance,  common  error  of  law  of  both  parties 
or  even  .the  sole  error  of  the  defendant,  when  resulting  in 
mistake  important  to  both  parties  to  the  contract  as  to  some 
of  the  matters  dealt  with  by  the  contract,  would  be  suffi- 
cient. But  it  is  submitted  that  neither  the  common  error 
of  both  parties  nor  the  sole  error  of  the  defendant  as  to  the 
operation  and  effect  of  the  contract  can  be  a  ground  for  re- 
sisting specific  performance,  ih) 

§  773.  Again,  as  in  cases  of  hardshii^,  the  turning  out  of 
events  in  a  way  different  from  what  the  iDarties  anticipated 
will  not  furnish  a  ground  of  defense  ;  so  in  regard  to  mis- 
take, if  persons  choose  to  speculate  upon  facts,  and  the 
view  on  which  they  acted  proves  to  be  a  mistaken  one,  that 

{]/)  17  Ir.  Oh.  K.,  73;  L.  R.  2  H.  L.  149;  («)  L.  R.  6  H.  L.,  234.  Cf.  Heald  v.  Walls 
Bupra,  §  753.  ISW.  R.,398. 

(s)  L..  R.  2  H.  L.,  170.  (6)  See  supra,  §  733  et  seq. 


MISTAKE.  385 

circumstance  will  furnisli  no  defense  on  wliicli  the  court 
will  act.(c) 

§  774.  Where  there  is  a  mistake  of  both  parties,  but  not 
about  the  very  subject  of  the  contract,  it  will  not  be  a  ground 
for  rectifying  the  contract.  Therefore,  where  both  i^arties 
were  under  a  mistake  as  to  the  duration  of  a  leasehold  in- 
terest, so  that  the  i^rice  was  considerably  less  than  if  the 
actual  extent  of  the  interest  had  been  known,  and  the  ven- 
dors filed  a  bill  asking  for  a  reassignment  of  the  extra  term 
which  the  purchasers  took  under  the  assignment,  Knight 
Bruce,  Y.  C,  held  that  the  lease  was  the  substance  sold 
and  not  a  term  of  the  supjDosed  duration,  and  that  the  ven- 
dors ought  to  have  known  what  was  the  condition  of  the 
property  they  proposed  to  sell,  and  accordingly  dismissed 
the  bill.(^)' 

§  775,  In  like  manner  the  Roman  jurists  held  that  mis- 
take as  to  the  substance  of  the  thing  avoided  the  contract ; 
but  if  there  be  only  a  difference  in  some  quality  or  acci- 
dent, though  the  misapprehension  may  have  been  the  actu- 
ating motive,  yet  the  contract  remains  binding,  (e) 

§  776.  The  court,  on  a  clear  j)rinciple,  will  not  interfere 
for  the  rectification  of  a  written  contract  where  it  was,  by 
the  intention  of  the  iDarties  to  it,  that  the  writing  did  not 
comprise  all  the  terms  of  the  actual  contract ;  for  what  is 
done  on  purpose,  is  evidently  not  done  by  mistake.     There- 

(c)  See,  at  common  law,  Harris  v.  Loyd,  5  («)  Kennedy  v.  Panama,  etc.,  Mail  Co.,  L. 
M.  &  W  ,  432.  R.  2  Q.  B.,  580,  and  authorities  there  cited. 

(d)  Okill  V.  Whittaker,  1  De  G.  &  Sm.,  83, 
afarmed2Ph.,338. 

'  The  fact  upon  which  the  party  claims  relief,  must  be  material  to  the  act  or 
contract — that  is,  it  must  be  essential  to  its  character,  and  an  efficient  cause  of 
its  inception.  For  if  there  be  an  accidental  ignorance  or  mistake  of  a  fact,  yet, 
if  the  act  or  contract  is  not  materially  affected  by  it,  the  party  claiming  rehef 
will  be  denied  it.  Therefore,  where  A.  buys  an  estate  of  B.,  to  which  the  latter 
is  supposed  to  have  an  vmquestionable  title,  and  it  turns  out  upon  investigation 
of  the  facts,  unknown  at  the  time  to  both  parties,  that  B.  has  no  title,  in  such  a 
case  equity  would  relieve  the  purchaser  and  rescind  the  contract.  But  if  A. 
were  to  sell  an  estate  to  B.,  whose  location  was  well  known  to  each,  and  they 
mutually  believed  it  to  contain  twenty  acres,  and  in' point  of  fact  it  contained 
onty  nineteen  acres  and  three-quarters,  and  the  difference  would  not  have 
varied  the  purchase  in  the  view  of  either  party,  then  the  mistake  would  not 
furnish  grounds  for  a  rescission  of  the  contract.  And  further,  to  entitle  a  party 
to  relief,  the  fact  must  be  such  that  he  could  not,  with  due  diligence,  have  ob- 
tained accurate  knowledge  of  it.  And  hence,  if  a  person  has  lost  his  remedy  at 
law,  through  negligence,  equity  will  not  assist  him.  Story's  Eq.  Jur.,  §  141 ; 
Willard's  Eq.  Jur.,  70,  71;  Trigg  v.  Reade,  5  Humph.,  529;  Perry  v.  Martin,  4 
Johm'sCh.,  566. 

25 


386        FRY  ON  SPECIFIC  TERFOIiMANCE  OF  CONTRACTS. 

fore,  where  there  was  a  contract  for  an  annuity,  and  the 
parties  to  it  designedly  omitted  a  proviso  for  redemption, 
thinking  it  would  render  the  transaction  usurious,  the  court 
refused  to  rectify  the  deed.(/)  The  parties  "desired  the 
court,"'  said  Lord  Eldon,(^)  "  not  to  do  what  they  intended, 
for  the  insertion  of  that  proviso  was  directly  contrary  to 
their  intention,  but  they  desired  to  be  put  in  the  same  situa- 
tion as  if  they  had  been  better  informed,  and  consequently 
had  a  contrary  intention.  "(^^/ 

§  777.  Where  the  parol  variation  which  the  plaintiff  or 
defendant  seeks  to  set  up  is  a  subsequent  contract  in  parol 
between  the  parties  to  a  written  contract,  the  case  in  nowise 
comes  within  the  doctrine  of  mistake,  and  the  parol  varia- 
tion is  inadmissible  under  the  Statute  of  Frauds,  except  in 
cases  where  the  refusal  to  perform  it  might  amount  to 
fraud.  C/y 

§  778.  Therefore  where  A.,  by  writing,  agreed  with  B.  to 
grant  him  a  lease,  to  commence  on  the  21st  of  April,  B.  being 
merely  the  agent  of  C. ;  and  subsequently  A.  and  C.  agreed 

(/)  Lord  Irnham  v.  Child,  1  Bro.  C.  C,  92;  (h)  See,  also,  PItcairn  v.  Ogboume,  2  Ves. 
Lord  Portmore  v.  Morris,  2  id.,  219;  Hare  v.  Sen  ,  375;  cf.  Cripps  v.  Jee,  4  Bro.  C.  C,  472, 
Shearwood,  3  id.,  168;  S.  C,  1  Ves.  Jun.,241.       (i)  See  per  Grant,  M.  R.,  in  Price  v.  Dyer. 

iff)  In  Marquis  Townshend  v.  Stangroom,  6    17  Ves.,  364. 
Ves.,  332. 

1  The  court  will  not,  interfere  -where  the  instrument  itself  is  such  as  the  par- 
ties intended  it  to  be.  If  the  parties  voluntarily  choose  to  express  themselves 
in  the  language  of  the  deed,  thej'  must  be  bound  by  it.  Story's  Eq.  Jur.,  §  113; 
Willard's  Eq.  Jur.,  p.  69. 

*  Therefore,  where  A.  contracted  in  writing  to  give  B.  a  deed  of  land  on  the 
payment  of  B.'s  notes  for  the  purchase  money,  and  afterwards  agreed  verbally 
to  deliver  a  deed  on  demand,  on  the  payment  of  B.'s  notes  before  they  were 
due,  and  at  the  time  of  this  verbal  agreement  B.  paid  the  notes  then  due,  and 
afterwards  tendered  payment  of  the  notes  not  then  due,  and  A.  refused  to  de- 
liver the  deed,  it  was  held  that  performance  of  the  contract,  as  modfied  by  this 
agreement,  could  not  be  enforced.  Brooks  v.  Wheelock,  11  Pick.,  489.  But 
in  such  cases  it  is  said  that  the  variation  may  be  available  as  a  defense,  if  accom- 
panied by  such  part  performance  as  would  enable  the  court  to  enforce  it  if  it 
were  an  original,  independent  agreement,  subject,  nevertheless,  to  the  doctrine 
of  equity,  which  allows  parties  by  their  acts  to  vary  the  original  agreement  in 
respect  of  matters  relating  to  the  title  and  the  time  of  completion.  Will.'s  Eq. 
Jur. ,  p.  289. 

Subsequent  parol  agreement  to  vary  loritten  contract.']  "The  written  executed 
contract  must  be  regarded  as  declaring  the  whole  contract  then  made,  and  such 
promises,  if  receivable  at  all,  are  admitted  merely  as  evidence  tending  to  show 
the  equity  dehors  the  conveyance,  arising  from  the  misapprehension  of  the  par- 
ties. It  is  exceedingly  clear  that  such  evidence  is  to  be  regarded  with  extreme 
caution.  For  otherwise  the  courts  would,  violate,  in  effect,  the  rule  which  they 
profess  to  hold  sacred,  that  the  operation  of  a  deed  or  other  written  instrument 
shall  not  be  abridged,  enlarged  or  altered  by  parol  testimony."  Gaston,  J.,  in 
Chamness  v.  Crutchfield,  2  Ired.'s  Eq.,  148;  Price  v.  Dver,  17  Ves.,  356; 
Blanchard  v.  Moore,  4  J.  J.  Marsh.,  471;  Coger  v.  McGee,  2  Bibb.,  321. 


MISTAKE.  387 

by  parol  that  the  lease  should  commence  from  the  24th  of 
June  instead  of  the  21st  of  Ai^ril,  and  be  made  to  C.  instead 
of  to  B.,  and  C.  and  B.  sought  a  specific  performance  of 
the  written  contract  as  varied  by  the  subsequent  parol  one, 
a  plea  of  the  Statute  of  Frauds  was  necessarily  allowed. (,;) 
And  where  there  was  a  contract  in  writing,  and  the  defend- 
ant set  uj)  a  subsequent  parol  contract,  by  which  the  par- 
ties mutually  abandoned  the  terms  of  the  written  contract 
and  then  agreed  upen  new  terms,  Grant,  M.  E,.,  held  that 
these  new  terms  were  merely  meant  to  modify  or  add  to  the 
terms  of  the  original  contract ;  that  therefore  the  parol  con- 
tract could  not  be  set  up  as  a  waiver  of  the  first,  and  that 
the  subsequent  terms  not  having  been  in  any  way  acted  on, 
the  second  contract  formed  no  defense  to  the  first,  the  execu- 
tion of  which  he  accordingly  directed.  (^)  Again,  where  the 
written  contract  was  silent  as  to  restrictive  covenants,  but 
there  was  some  evidence  of  a  subsequent  contract  to  take 
the  lease  subject  to  a  certain  restrictive  covenant  as  to  trade, 
the  Statute  of  Frauds  was  held  to  be  a  bar  to  the  perform- 
ance which  the  plaintiff  sought  of  this  subsequent  parol 
contract.  (Z) 

§  779.  The  question  how  far  a  plaintiff  can  enforce  spe- 
cific performance  of  a  contract  with  a  parol  variation,  or,  in 
other  words,  with  a  rectification  of  a  mistake,  is  on  the  au- 
thorities not  perfectly  clear ;  but  the  weight  of  authority 
appears  distinctly  to  prevail  in  favor  of  the  proposition 
that,  under  the  practice  of  the  court  of  chancery,  a  plain- 
tiff could  not  sue  for  the  specific  performance  of  a  contract 
with  a  parol  variation. 

Before  i^roceeding  to  consider  the  cases  on  this  point,  we 
may  briefly  advert  to  princiioles. 

§  780.  With  regard  to  a  mistake  of  the  plaintiff"  alone, 
it  is  at  once  obvious  that  to  allow  him  to  correct  this  mis- 
take, and  enforce  the  contract  so  corrected  on  the  other 
party  to  it,  would  be  a  great  injustice. 

§  781.  With  regard,  however,  to  a  mistake  of  both  par- 
ties to  a  contract  in  the  reduction  of  the  contract  into 
writing,  there  can  be  no  objection  in  point  of  justice  to  the 
plaintiff's  asking  to  have  that  mistake  corrected,  and  to 

( i)  Jordan  v.  Sawkins.  3  Bro.  C.  C,  383 ;  S.        (fc)  Price  v  Dyer,  17  Ves.,  35G. 
C.  1  Ves.  Jun.,  402.  (ij   Snelling  v.  Thomas,  L.  K.  17Eq.,  303. 


388        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

have  the  real  contract  carried  into  execution.  This  would 
be  the  result,  if  the  plaintiff  sued  for  specific  performance 
of  the  written  contract,  and  then  submitted  to  a  parol  varia- 
tion set  up  and  proved  by  the  defendant.  Again,  there  be- 
ins;  an  undoubted  jurisdiction  for  the  reform  of  contracts, 
and  also  a  jurisdiction  for  the  execution  of  them,  there 
seems  no  reason  why,  when  both  these  grounds  of  action 
are  necessary  to  give  the  plaintiff  his  full  rights,  they  may 
not  be  proceeded  on  in  one  and  the  same  action. 

§  783.  It  may  be  said  that  a  plaintiff  seeking  to  correct 
and  enforce  a  contract  which  is  within  the  Statute  of  Frauds 
is  suing  in  contravention  of  that  act.  But  the  objection 
seems  untenable.  For  every  action  to  correct  by  parol  evi- 
dence a  written  contract,  whether  executed  or  executory,  is 
in  some  sense  a  suing  on  the  contract ;  yet  the  jurisdiction 
of  equity  in  cases  of  mistake  in  written  contracts  is  clear. 
Mistake,  like  fraud,  (m)  must  be  deemed  an  exception  to  the 
statute  in  equity. 

§  783.  Whether  this  reasoning  be  incorrect  or  not,  there 
is  a  series  of  cases  which  seem  to  establish  the  proposition, 
that  in  the  court  of  chancery  a  plaintiff  could  not  be  allowed 
to  sue  for  the  specific  performance  of  a  contract  with  a  parol 
variation  :  these  may  now  be  considered. 

§  784.  In  Rich  v.  Jackson,  (7i)  the  plaintiff  sought  the  exe- 
cution of  a  contract  for  a  lease  with  a  variation  by  the  intro 
duction  of  the  words  "clear  of  all  taxes,"  and  the  witnesses 
I)roved  the  meaning  of  the  iDarfcies  to  have  been  as  the  plain- 
tiff alleged;  but  Lord  Rosslj^n  said,  "I  cannot  find  that 
this  court  has  ever  taken  ui)on  itself,  in  executing  a  written 
agreement  by  a  specific  performance,  to  add  to  it  by  any 
circumstanse  that  parol  evidence  could  introduce  ;"(o)  and 
accordingly  the  parol  evidence  was  rejected,  and  the  court 
refused  to  execute  the  contract,  except  upon  the  terms  of 
the  written  agreement,  which  the  plaintiff  declined,  and  ac- 
cording had  his  bill  dismissed. 

§  785.  In  Woollam  v.  Hearn,(^)  the  point  was  fully  con- 
sidered by  Grant,  M.  R.  The  plaintiff  alleged  a  contract 
with  the  defendant,  by  which  the  defendant  was  to  grant  to 

(m)  See  supra,  §  538.  484  (4th  ed.),  and  cases  there  collected;  Hlg- 

(»)  4Bro.  C.  C.,514;  6Ves.,334n.  ginson  v.  Clowes,  15  Ves.,516,  523;  Winch  v. 

(0)  6Ves.,335n.  Winchester,  1  V.  &  B.,  375,  378;  Nurse  v. 

(P)  7  Ves.,  211;  S.  C,  W.  &  T.Lead.  Case.,  Lord  Seymour,  13  Beav.,  254. 


MISTAKE.  389 

tlie  plaintiff  a  lease  of  a  certain  lioiise  at  £60  per  annum  : 
of  this  contract  a  memorandum  was  drawn  up  and  signed, 
but  by  mistake,  or  with  some  unfair  view,  £73  10*.  was  in- 
serted as  the  rent,  instead  of  £60  :  by  her  bill  the  plaintiff 
sought  specific  i^erformance  of  the  contract  rectified  as  to 
the  amount  of  rent.  The  evidence  of  the  plaintiff  appeared 
to  the  judge  to  establish  her  position,  but  he  rejected  it  and 
dismissed  the  bill,  holding  that  though  it  would  have  been 
admissible  for  the  plaintiff  if  she  had  been  defendant,  yet 
that  it  could  not  be  used  to  j^rocure  a  decree. 

§  786.  The  same  doctrine  was  entertained  by  Lord  Redes- 
dale,  (g)  and  has  on  more  than  one  occasion  been  stated  by 
Lord  Cottenham,  and  also  by  Wigram,  Y.  C.(r)  "It  is," 
said  Lord  Cottenham  in  one  case,  "  a  familiar  doctrine  in 
this  court,  that  although,  to  resist  a  specific  performance, 
a  defendant  may  show  by  parol  that  the  written  document 
does  not  represent  the  contract  between  the  parties,  yet  a 
X^laintiff  cannot  have  a  decree  for  a  specific  performance  of 
a  written  contract  with  a  variation  uiDon  parol  evidence. "(5) 

§  787.  In  the  case  of  the  Attorney-General  v.  Sitwell,(^) 
Alderson,  B.,  expressed  a  strong  opinion,  in  accordance  with 
the  doctrine  in  question,  that  the  court  would  not  reform 
and  then  enforce  an  executory  contract,  except,  x^erhaps, 
where  the  mistake  was  admitted  by  the  answer,  which 
might  seem  to  take  it  out  of  the  Statute  of  Frauds. 

§  788.  This  line  of  cases  may  be  closed  by  the  authoritj^ 
of  Lord  St.  Leonards.  In  a  case  which  came  before  his 
lordsbi^D  when  chancellor  of  Ireland,  there  was  a  written 
contract  for  a  lease,  and  then  a  lease  executed  in  conse- 
quence of  it,  and  a  bill  was  brought  for  the  reform  of  the 
lease,  not  by  the  contract,  but  by  introducing  a  term  into 
it  bj^  -piirol.{ti)  His  lordship  stopped  the  argument  for  the 
plaintiff,  considering  that  it  was  really  against  first  princi- 
ples to  discuss  the  point,  and  said  that  the  deed  could  not 
be  reformed  by  that  which  would  have  been  inadmissible  if 
the  contract  were  resting  infiei%  and  the  bill  had  sought  a 
specific  performance  of  it.  "It  is  said,"  observed  his  lord- 
ship, (?))  "that  if  a  mistake  was  proved,  and  that  there  was 

(g)  Clinan  v.  Cooke,  1  Sch.  &  Lef.,  22,  3S.        Winter,  Cr  &  Ph  ,  57.  61.    See,  also,  Emmett 
(r)  In  Manser  v.  Back,  6  Ha.,  447.  v.  Dewhurst,  3  Mac.  &  G.,  587. 

(s)  In  Squire  v.  Campbell,  1  My.  &  Or.,  480;        (t.)  1  Y.  &  C.  Ex.,  559. 
JLondon  and  Birmingham    Railway  Co.  v.        (u)  Davies  v.  Fitton,  2  Dr.  &  War.,  225. 

(V)  2  Di.  &  War.,  233. 


390        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

no  written  agreement,  the  parol  evidence  would  be  admissi- 
ble. Perhaps  it  might,  because  there  is  no  settled  rule  of 
law  in  the  way,  and,  as  there  is  no  written  contract,  the 
court  must  endeavor  to  ascertain,  by  the  best  evidence  it 
can  get,  w^hat  was  the  contract  of  the  parties,  and  whether 
there  was  any  mistake." 

§  789.  It  is,  perhaps,  not  perfectly  obvious  why,  if  parol 
evidence  would  be  admissible  to  correct  a  deed  executed 
without  any  previous  written  contract,  it  should  yet  be  in- 
admissible to  correct  a  written  contract  itself  ;  for  the  only 
principle  applicable  seems  to  be  that  writing  excludes  parol, 
and  it  might  be  thought  that  this  would  apply  with  more 
force  to  a  solemn  deed  than  to  a  mere  preliminary  contract. 

§  790.  It  may,  perhaps,  also  be  inquired  wiiy,  if  the 
court  presumes  a  previous  contract  resting  in  parol  in  the 
case  of  a  deed,  no  such  presumption  is  made  in  the  case  of  a 
written  contract ;  why  the  written  contract  may  not,  equally 
with  the  deed,  be  corrected  by  reference  to  such  a  previous 
parol  contract ;  and  why  the  court  does  not,  as  much  in  the 
one  case  as  in  the  other,  ascertain  what  that  contract  was 
by  the  best  evidence  it  can  get. 

§  791.  The  current  of  authorities,  however  strong,  can 
yet  scarcely  be  considered  uniform  in  favor  of  the  position 
that  the  plaintiff  can  never  avail  himself  of  a  parol  varia- 
tion. There  are  dicta  of  Lord  Hardwicke'  s  which,  notwith- 
standing the  remarks  upon  them  of  Lord  Iledesdale('io)  and 
of  Grant,  M.  'R.,{x)  imply,  it  is  submitted,  a  somewhat  dif- 
ferent view  of  the  question  from  that  already  stated. 

§  793.  In  Walker  v.  Walker,  (2/)  John  Walker,  a  brother 
of  both  the  plaintiff  and  defendant,  contracted  with  the 
plaintiff,  by  parol,  that  if  the  plaintiff  would  surrender  his. 
copyhold  estate  for  the  benefit  of  the  defendant,  he,  John 
Walker,  w^ould  secure  an  annuity  for  the  plaintiff' s  life,  and 
another  for  that  of  his  wife  :  upon  this,  John  Walker  sur- 
rendered his  copyhold  estate  to  the  defendant,  charged  with 
these  annuities;  but  the  plaintiff  did  not,  in  accordance 
with  his  contract  with  John  AValker,  surrender  his  copy- 
hold estate  to  the  defendant,  whereupon  the  defendant  re- 
fused to  pay  the  annuities.     The  plaintiff  brought  his  bill 

(w)  In  Clinan  v.  Cooke,  1  Sch.  &  Lef.,  38.  (y)  2  Atk.,  98;  S.  C,  6  Ves.,  335  n. 

(a;)  In  VVoollam  v.  Hearn,  7  Ves.,  219. 


MISTAKE.  391 

for  their  payment,  and  the  defendant  relied  on  tlie  phiin- 
tiff's  breach  of  tlie  parol  contract  witli  John  Walker.  Lord 
Hardwicke  held  that  the  plaintiff's  equity  was  rebutted  by 
the  defendant's  equity,  and  added, (z)  ''  I  am  not  at  all  clear 
whether,  if  the  defendant  had  brought  his  cross-bill  to  have 
this  agreement  established,  the  court  would  not  have  done 
it,  upon  considering  this  in  the  light  of  those  cases,  where 
one  part  of  the  agreement  being  jierformed  by  one  side,  it 
is  but  common  justice  it  be  carried  into  execution  on  the 
other,  and  the  defendant  would  have  had  the  benefit  of  it  as 
an  agreement."  And  in  Joynes  v.  Statham,(a)  Lord  Hard- 
wicke expressed  his  oi^inion  that  evidence  of  the  omission, 
in  a  contract  for  a  lease,  of  the  exi:)ression  "  clear  of  taxes," 
might  have  been  given  by  the  defendant,  if  he  had  been 
plaintiff  seeking  a  specific  performance,  but  his  lordship 
considered  it  in  the  light  of  an  explanation  of  an  executory 
contract,  and  not  of  a  variation. 

§  793.  There  was  a  case  before  Lord  Thurlow  which, 
though  it  rests  rather  on  the  ground  of  fraud  than  mistake, 
comes  very  near  to  admitting  i^arol  evidence  on  the  part  of 
the  plaintiff  to  supply  a  term  in  a  written  contract.  It  Avas 
a  bill  brought  by  the  original  lessees  of  a  tenn  against  the 
purchaser  from  them,  for  the  specific  performance  of  a  con- 
tract to  indemnify  the  plaintiffs  against  all  rents  and  cove- 
nants in  the  lease,  and  to  execute  a  bond  for  securing  such 
indemnity.  The  property  had  been  sold  by  auction,  and 
the  conditions  of  sale  did  not  stipulate  for  such  an  indem- 
nity ;  but  the  contract  was  proved  by  parol.  Lord  Thurlow 
held  the  evidence  to  be  admissible,  and  laid  it  down  that 
where  an  objection  is  taken  before  the  i^arty  executes  the 
contract,  and  the  other  side  promise  to  rectify  it,  it  is  to  be 
considered  a  fraud  on  the  party,  if  such  promise  is  not 
kept ;  and  his  lordship,  after  an  issue  to  satisfy  himself  of 
the  facts,  granted  specific  performance.  (Z>) 

§  794.  Lord  Eldou  seems  to  have  been  of  opinion  that 
parol  evidence  was  admissible  for  the  plaintiff'.  In  the  Mar- 
quis Townshend  v.  Stangrooni,(c)  the  plaintifl"  in  the  origi- 
nal bill  sought  sjoecific  performance  with  a  parol  variation, 

(?)  2  Atk.,  ion.  (h)  Peniber  v.  Mathers,  1  Bro  C.  C,  52;  per 

(a)  3  Atk.,  .388    See  this  and  the  iireceOing  Graut,  M  H  ,  in  flarke  v.  Grant,  14  Ve-  ,  5i4; 

case  observed  on  by  I^ord  Redesdale  in  CU-  See.  also,  Harrison  v.  Gardner,  2  Mad.,  193. 

nan  v.  Cooke,  1  Sch.  &  Lef,  38,  39.  (c)  6  Ves.,  31S. 


392        FRY  ON  SPECIFIC  PEKFOKMANCE  OF  CONTRACTS. 

and  the  defendant  by  a  cross  bill  songht  the  performance  of 
the  written  contract  as  it  stood.  "  I  will  not  say,"  said  his 
lordship,  "that  upon  the  evidence  without  the  answer  I 
should  not  have  had  so  much  doubt,  whether  I  ought  not 
to  rectify  the  agreement  upon  which  Stangroom  relies,  as  to 
take  more  time  to  consider,  whether  the  bill  should  be  dis- 
missed, («^)  language  which  seems  to  imply  that,  had  the 
evidence  been  satisfactory,  the  contract  might  have  been 
rectified  and  performed. 

§  795.  In  a  case  before  Knight  Bruce,  V.  C,  there  was 
an  assignment  by  deed  of  a  farming  lease  and  stock  for  a 
valuable  consideration  stated  in  the  deed,  and  it  was  proved 
by  parol  that,  over  and  above  this  consideration,  there  was 
a  contract  to  pay  the  plaintiff  £40  a  year  for  his  life,  and  to 
find  him  during  the  same  i^eriod  a  house  worth  £10  a  year ; 
the  assignment  having  been  carried  into  effect,  the  court 
granted  siDecific  loerformance  of  the  parol  contract  at  the 
suit  of  the  annuitant  :(e)  the  case  was  put  on  the  ground  of 
an  additional  consideration,  which  may  be  proved  by  parol 
when  not  inconsistent  with  the  instrument, (/)  It  may  be 
observed  that,  where  such  a  consideration  is  executory  and 
is  alleged  by  the  plaintiff,  and  a  specific  performance  of  it 
obtained,  the  case  seems  to  afford  one  instance  in  which  a 
plaintiff  may  obtain  specific  iDerf  ormance  of  a  contract  with 
a  parol  variation. 

§  796.  In  the  case  of  Martin  v.  FjcToft,(g)  the  plaintiff 
alleged  a  written  contract  for  a  lease,  and  in  addition  a  iDarol 
term — namely,  that  he  was  to  pay  the  defendant  £200  for  it 
— and  prayed  siDecific  performance:  Parker,  Y.  C,  refused 
it  on  the  ground  that  the  plaintiff  himself  showed  that  a 
material  term  in  the  contract  had  been  omitted,  and  that 
the  specific  performance  of  such  a  contract  was  inconsistent 
with  the  Statute  of  Frauds.  This  decision  was  overruled 
by  the  lords  justices,  who  held  a  written  contract  to  be,  in 
the  absence  of  fraud  or  mistake,  binding  at  law  and  in 
equity  according  to  its  terms,  although  verbally  a  term  was 

id)  eVes.,  339.  Robinson  v.  Page,  3  Rusa.,  114,  the  parol 

{p    Clifford  V   Turrell,  1  Y.  &  C.  C.  C,  138;  variatious  to  which  the  plaintiff  by  hia  bill 

c  Kcuban  V.  Haiialey,  12  W.  R  ,  932  (where  offered  to  submit  were  considered   by  the 

a  contract  to  grant  an  annuity  in  considera-  court  not  to  affect  the  plaintiff's  ris^lus:  the 

tlon  of  diacomiuuance  of  cohabitation  was  defendant  was  allowed  to  eiect  whether  they 

enforced).  should  be  carried  into  effect  or  not.  liy  reason 

(/)  Rex  V.  Scammonden,  3  T   R.,  474.  of  the  plaintiff's  offer,  and  not  of  any  original 

{</)  i  De  G.  SI.  &  G.,  785.    In  the  case  of  right  in  the  defendant. 


MISTAKE.  393 

agreed  to  which  has  not  been  inserted  in  the  document, 
subject  to  this,  that  the  defendant  may  call  on  the  court  to 
be  neutral,  unless  the  plaintiff  will  consent  to  the  omitted 
term,  and  that  the  case  under  consideration  came  within 
that  rule.  The  term  was  here,  however,  set  up  not  by  the 
defendant,  but  by  the  plaintiff,  and  the  case  seems,  there- 
fore, to  show  that  the  x^laintiff  may  allege  a  parol  variation, 
which,  if  set  wp  by  the  defendant  and  submitted  to  by  the 
plaintiff,  might  have  been  introduced  into  the  contract  as 
specifically  performed  by  the  court.  It  thus  seems  to  estab- 
lish a  very  important  limitation  on  the  generality  of  the 
rule,  that  a  plaintiff  can  never  allege  such  a  variation. 

§  797.  In  this  state  of  the  authorities,  it  may  be  interest- 
ing to  state  the  opinion  of  American  jurists.  Though  the 
doctrine  that  the  plaintiff  can  never  adduce  parol  evidence 
of  a  variation  in  suits  for  specific  performance  has  been 
acted  on  by  some  of  the  courts  of  that  country,  (7i)  it  has 
been  combated  by  some  of  its  most  eminent  jurists.  "  It  is 
in  effect,"  says  Mr.  Justice  Story,  "a  declaration  that  parol 
evidence  shall  be  admissible  to  correct  a  writing  as  against 
a  plaintiff,  but  not  infa.vor  of  a  plaintiff  seeking  a  specific 
performance.  There  is,  therefore,  no  mutuality  or  equality 
in  the  operation  of  the  doctrine.  The  ground  is  very  clear, 
that  a  court  of  equity  ought  not  to  enforce  a  contract  where 
there  is  a  mistake,  against  the  defendant  insisting  upon  and 
establishing  the  mistake ;  for  it  would  be  inequitable  and 
unconscientious.  And  if  the  mistake  is  vital  to  the  contract, 
there  is  a  like  clear  ground  why  equity  should  interfere  at 
the  instance  of  the  party  as  plaintiff,  and  cancel  it :  and  if 
the  mistake  is  partial  only,  why,  at  his  instance,  it  should 
reform  it.  In  these  cases  the  remedial  justice  is  equal ;  and 
the  parol  evidence  to  establish  it  is  equally  open  to  both 
parties  to  use  as  proof.  Why  should  not  the  party  ag- 
grieved by  a  mistake  in  an  agreement  have  relief  in  aU 
cases,  where  he  is  plaintiff,  as  well  as.  where  he  is  defend- 
ant \  Why  should  not  parol  evidence  be  equally  admissible 
to  establish  a  mistake  as  the  foundation  of  relief  in  each 
case  ?  The  rules  of  evidence  ought  certainly  to  work  equally 
for  the  benefit  of  each  party. "(/) 

(h)  1  Story,  Eq.  Jur.,  §  161.  (»)  Storr.  Eq.  Jur..  §  IB:  n. 


394        FRY  ON  SPECIFIC  FERFOKMANCE  OF  CONTRACTS. 

§  798,  In  delivering  judgment  in  the  case  of  Keisselbrack 
V.  Livingstone, (,y)  Mr.  Chancellor  Kent  held  the  following 
language  :  "  Why  should  not  the  party  aggrieved  by  a  mis- 
take in  the  agreement  have  relief  as  well  when  he  is  plain- 
tiff as  when  he  is  defendant  ?  It  cannot  make  any  difference 
in  the  reasonableness  and  justice  of  the  remedy,  whether 
the  mistake  were  to  the  prejudice  of  the  one  i^arty  or  the 
other.  If  the  court  be  a  competent  jurisdiction  to  correct 
such  mistakes  (and  that  is  a  point  understood  and  settled), 
the  agreement,  when  corrected  and  made  to  speak  the  real 
sense  of  the  parties,  ought  to  be  enforced,  as  Avell  as  any 
other  agreement  perfect  in  the  first  instance.  It  ought  to 
have  the  same  efficacy  and  be  entitled  to  the  same  protec- 
tion, wdien  made  accurate  under  the  decree  of  the  court  as 
wlien  made  accurate  hy  the  act  of  tlie parties.'''' {ky 

§  .799.  The  judicature  act,  1873  (§  24,  subsection  7),  re- 
quires the  high  court  in  any  cause  to  grant  all  such  remedies 
whatsoever  as  any  of  the  parties  thereto  may  appear  to  be 
entitled  to  in  respect  of  any  and  every  legal  and  equitable 
claim  properly  brought  forward  by  them  resi^ectively  in 
such  cause,  so  that  so  far  as  possible  all  matters  in  contro- 
versy between  the  said  parties  respectively  may  be  com- 
pletely and  finally  determined,  and  all  multiplicity  of  legal 
proceedings  concerning  any  of  such  matters  avoided.  It  is 
submitted  that  under  this  provision  the  high  court  could 
have  no  difficulty  in  entertaining  an  action  for  the  reforma- 

(j)  4  John.'s  Ch.  Rep.,  148.  (k)  See  per  Lord  Eklon  in  Cook  v.  Richards, 

10  Ves.,  441. 

'  It  has  become  an  e.stablished  nile  in  this  country,  that  the  plaintiff  is  as 
fully  entitled,  in  cases  of  this  kind,  to  equitable  relief,  upon  an  agreement  so 
varied  by  parol,  as  the  defendant.  Equity  will  therefore  correct  an  agreement 
according  to  its  true  intent,  when  the  variation  is  clearly  established  by  evidence 
aliunde,  and  enforce  it  as  corrected.  Rogers  v.  Atkinson,  1  Kellv,  13;  Coot  v. 
Craig,  2  Hen.  &  Munf.,  618;  Rhode  Island  v.  jMassachusetts,' 15  Pet.,  233. 
Gillespie  v.  Moon,  2  John.'s  Ch.,  585;  Smith  v.  xillen,  Saxton,  43;  Dismukes 
V.  Terry,  Walker,  197;  Hendrickson  v.  Jones,  Saxton,  563;  Chamberlain  v. 
Thompson,  10  Conn.,  243;  Cobb  v.  Preston.  2  Root,  78.  Saudford  v.  Wash- 
burn, id.,  449;  Elmore  v.  4-Ustin,  id.,  415;  Wilson  v.  Henderson,  4  Scam.,  13. 
Shelly  V.  Smith,  2  A.  K.  Marsh.,  504;  Gooding  v.  McAllister,  9How.'sPr.  Rep  , 
123.  Therefore,  where  two  tenants  in  common  agreed  to  make  partition,  ac- 
cording to  the  award  of  referees,  executed  deeds,  and  took  possession  under 
them,  and  it  subsequently  appeared  that,  in  the  plaintiff's  deed,  a  tract  which 
had  been  assigned  to  him,  had  been  omitted  by  mistake,  it  was  held  that  the 
mistake  should  be  rectified,  and  that  a  specific  performance  of  the  contract,  as 
to  the  tract  omitted,  should  be  decreed.  Tilton  v.  Tilton,  9  N.  H.,  385.  And 
see  Coles  v.  Brown,  10  Paige,  535,  a  case  decided  by  Walworth,  chancellor. 
See,  also,  Rosevelt  v.  Fulton,  2  Cow.,  129. 


MISTAKE.  395 

tion  of  a  contract,  and  for  the  specific  performance  of  such 
reformed  contract,  in  every  case  in  which  the  Statute  of 
Frauds  did  not  create  a  bar. 

§  800.  It  may  be  added  that  tliere  are  cases  somewhat 
resembling  specific  performance,  where,  in  the  same  suit, 
the  plaintiff  has  had  an  instrument  rectified,  and  then  ob- 
tained consequential  relief  ;  as  where  a  bond  and  deposit  of 
deeds  were  given  to  secure  an  advance,  and  the  ])ond,  by 
mistake,  appeared  to  be  usurious ;  the  plaintiff  proved  the 
mistake,  had  the  bond  rectified,  and  was  held  entitled  to 
the  consequential  relief  to  wliich  an  ordinary  obligee  and 
equitable  mortgagee  is  entitled.  (Z)  In  another  case  a  client 
entered  into  a  contract  with  his  solicitor  for  the  payment  of 
a  fixed  sum  of  money  in  lieu  of  costs,  and  the  contract  con- 
tained mistakes  as  to  the  name  and  rights  of  the  client, 
which,  if  construed  strictly,  would  have  excluded  the  so- 
licitor from  all  rights  under  the  contract.  In  consequence 
of  these  mistakes,  the  solicitor,  by  his  bill,  alleged  that  he 
had  no  remedy  at  law,  and  accordingly  jirayed  that  the 
contract  might  be  rectified,  and  an  order  made  for  x)ayment 
of  the  sum  of  money  under  the  contract,  as  if,  at  the  time 
of  its  execution,  it  had  expressed  the  intention  of  the  par- 
ties :  the  court  made  a  decree  directing  the  payment  of  the 
money.  (??^) 

§  801.  It  may  here  be  added  that  a  misdescription  in  the 
contract  may  be  attributable  to  (1)  the  plaintiff  alone,  or 
(2)  the  defendant  alone,  or  (3)  l)()th  x^J^i'ties  ;  and  in  either 
of  the  former  cases  it  may  be  either  fraudulent  or  innocent. 
If  it  be  fraudulent,  the  party  guilty  of  the  fraud  of  course 
cannot  avail  himself  of  it  in  any  way :  if  it  be  innocent, 
then  (1)  if  it  be  attributable  to  the  plaintiff  alone  and  induce 
mistake,  if  falls  under  the  head  of  mistake  induced  l)y  the 
plaintiff  \{n)  (2)  if  it  be  attributable  to  the  defendant  alone, 
it  conies  under  the  head  of  mistake  purely  due  to  the  de- 
fendant ;(o)  and  lastly  (3)  if  it  be  attributable  to  botli  par- 
ties, it  falls  under  the  head  of  common  error  or  mistake.' 

(0  nodgkinson  v.  Wyatt.  9  Beav  ,  566.  (o)  Supra,  §  7-2S  ct  seq. 

(TO)  Stedman  v.  Colhtt,  17  Beav.,  608.  (p)  Supra,  §  749  et  scq;  §  781. 

(«)  Supra,  §  7-26  et  seq.,  §  780. 


'  CmitemporaneoiiH  roridnfi!^  ill  cafes  of  miHtdke  in  uritten  c^mtrnrt.']  Where  it 
is  sought  to  vary  a  written  contract  by  parol  proof,  the  coiirt  will  take  into  con- 
sideration aots  done  under  the  agreement,  and  also  examine  contemporaneous 


396      FRY  ox  SPECIFIC  perfor:mance  of  coxtracts. 

■writings  betweeu  the  parties  if  they  were  written  witliin  a  reasonable  time,  and 
relate  to  the  same  subject  matter!  AVinnipissesgee  Maniif.  Co.  v.  Perle}^  46 
N.  H.,  83. 

Wuiiier  of  written  contract  by  parol  jn-oof.]  Parol  evidence  may  be  introduced 
to  .show  that  an  executory  contract,  which  has  been  reduced  to  writing,  but  not 
under  seal,  has  been  discharged,  abandoned  or  waived.  But  where  the  agree- 
ment to  rescind  is  established  by  parol  proof  only,  the  evidence  must  be  very 
clear  of  the  intention  to  change  tlie  written  contract.  Laner  v.  Lee,  42  Pa.  St., 
1G.5;  Buel  v.  ]Miller,  4  N.  ll.,"l!)6;  Goucher  v.  Martin,  9  AVatts,  106;  Bottsford 
v.  Buer,  2  John.'s  Ch.,  405;  Buckhouse  v.  Crosby,  2  Eq.  Cas.  Ab.,  32;  Boyce 
v.  3IcCulloek,  3  Watts  &  Serg.,  429;  Tolson  v.  Tolson,  10  Mo.,  736;  Bowser  v. 
Craveuer,  56  Pa.  St.,  132. 

Midake  in  aioard;  correction.']  Where  there  is  clearly  a  mistake  in  an  award, 
a  court  of  e(iuit}^  will  correct  it.  Kerr  on  Fraud  and  31is.,  44G,  448;  Bunpass 
V.  Webb,  4  Porter,  65;  Wheatly  v.  Wartin,  6  Leigh.,  62;  Ryan  v.  Blunt,  1  Dev. 
Eq.,  382;  Pleasant  v.  Ross,  1  Wash.  (Va.),  156.  "An  error'in  judgment  on  the 
merits  will  not  be  corrected  however.  Head  v.  Muir,  3  Rand  ,  122;  Van  Court- 
land  V.  Lnderhill,  17  John.,  405;  Cromwell  v.  Owings.  G  Har.  &  John.,  10; 
Radcliffe  v.  AVightman,  1  McCord's  Ch.,  408;  Rudd  v.  Jones,  4  Dana,  229; 
Hurst  V.  Hurst,  2  Wash.  C  C,  127;  Burchell  v.  Marsh,  17  How.,  344;  Boston 
AVater  Power  Co.  v.  Gray,  6  Met.,  131. 

Settlement  of  controversies  ;  mistake  as  to  the  laic.']  Where  a  compromise  is 
entered  into  to  avoid  or  terminate  a  litigation,  both  parties  having  the  same 
means  of  knowledge,  and  there  is  neither  fraud,  misrepresentation  or  undue 
influence  practiced — held,  that  a  mistake  as  to  the  law  is  no  reason  for  setting 
aside  such  compromise.  The  rule  is  the  same  where,  in  fact,  only  one  of  the 
parties  has  a  valid  claim,  if  the  parties  themselves  considered  it  doubtful. 
Gordon  v.  Gordon,  3  Swanst.,  463;  Lawton  v.  Campion.  18  Beav.,  87;  Stewart 
v.  Stewart.  G  CI.  A:  Fin.,  9u9;  Brooke  v.  Lord  Morton,  2  De  G.  J.  <fc  S  ,  373; 
Stapleton  v.  Stapletou,  1  Atk.,  2;  Luck,  e.c  ^wrfe,  4  De  G.  M.  &  G.,  356; 
Wheeler  v.  Smith,  9  How.,  55.  But  the  rule  is  reversed  in  a  case  where  a 
party,  having  no  knowledge  of  a  well-settled  principle  of  law,  is  imposed  upon, 
and  made  to  surrender  his  property  under  the  pretense  that  a  compromise  will 
be  affected.  Naylor  v.  AVinch,  1  Sim.  &  Ster.,  555;  Jones  v.  Munroe,  32  Ga., 
181. 

Mistake  wliich  has  reference  to  both  tJie  law  and  the  facts.]  In  such  a  case, 
equity  will  afford  relief,  as  it  forms  an  exception  to  the  rule.  A  party  reposing 
confidence  in  his  coimsel  gave  his  note  for  more  than  he  was  legallj-  bound  to 
pay;  this  was  done  through  a  mistake  of  the  counsel.  Held,  that  equity  would 
relieve  him.     Fitzgerald  v.  Peck,  4  Litt.,  125;  Gross  v.  Leber,  47  Pa.  St.,  520. 

Mistake  as  to  matters  of  fact.]  In  such  case,  party  complaining  must  not  be 
in  fault,  and  must  be  reasonablj-  diligent.  Leake  on  Contracts,  182;  Jenks  v. 
Fritz,  7  AA^atts  &  Sere.,  201;  Ketchum  v.  Catlin,  21  A't.,  191;  Duke  of  Beau- 
fort V.  Neeld,  12  CLi'  Fin.,  248,  286;  Merchants'  B'k  v.  Mclntyre,  2  Sandf., 
431;  AAlld  v.  Hillis,  18  L.J.  Ch.,  170;  Jouzin  v.  Foulmin,  9  Ala.,  662;  AVarner 
V.  Daniels,  1  Woodb.  &  Minot,  90;  AVestern  R.  R.  Co.  v.  Babcock,  6  Mete, 
346;  Copehart  v.  Moon,  3  Jones'  Eq.,  178;  Lenty  v.  Hillas,  2  De  G.  &  J.,  110; 
Laub  V.  Harris,  8  Ga.,  546;  Daniel  v.  Mitchell,  1  Story,  172;  Person  v.  Sanger, 
1  Woodb.  &  Minot,  138;  Hill  v.  Bush,  19  Ark.,  522;  Dimon  v.  Providence  R. 
R.  Co.,  5  R.  I.,  130:  Taylor  v.  Fleet,  4  Barb.,  95;  Pennv  v.  Martin,  4  John.'s 
Ch.,  566;  Kite  v.  Luupkin,  40  Ga.,  506;  Cu.stard  v.  Custard,  T-'  Tex.,  49;  Wood 
V.  Patterson,  4  Md.'s  Ch.,  335;  Peterson  v.  Grover,  20  Me.,  363;  Upham  v. 
Hamill,  11  R.  L,  5G5. 

Equity  icill  reform  a  contract  in  order  that  it  shall  express  the  reed  intent  of  the 
parties.  ]  AVhen  the  phraseology  of  the  contract  does  not  express  the  true  in- 
tention of  the  .parties,  specific  performance  will  be  refused;  a  court  of  equity 
will  carry  out  the  real  intention  of  the  parties.  James  v.  State  Bank,  17  Ala., 
69;  Mitchel  v.  Nicholson,  8  Yerg.,  194;  Quick  v.  Stuyvesant,  2  Paige's  Ch.. 
84;  ;Mechanics'  Bank  v.  Lynn,  1  Pet.,  376;  King  v.  Hamilton,  4  id.,  311 ;  Brad- 
bury v.  AVhite,  4  Me.,  391;  Clopton  v.  Martin,  11  Ala.,  187;  Frisby  v.  Ballance, 
5  111.  (4  Scam.),  287;  Dulamy  v.  Rogers  50  Md.,  524;  Hunt  v.  Freeman,  1 
Ohio,  490;  Langdon  v.  Keith,  9  Yt.,  299;  Fairstone  v.  De  Camp,  2  C.  E.  Green, 


MISTAKE.  397 

317;  Webster  v.  Harris,  16  Ohio,  490;  Rings  v.  A.sliworth.  3  Iowa,  452;  Mosely 
V.  Wall,  28  Miss.,  31 ;  Leavitt  v.  Palmer,  3  N.  Y.,  19;  McElderry  v.  Shirley,  2 
Md.,  25;  Cummings  v.  Steele,  54  Miss.,  647;  Smith  v.  Jordan,  13  Miuu.,  :JG4. 

Mistake  cts  to  the  subject  matter  of  the  contract.]  In  a  case  where,  at  the  time 
the  agreement  is  entered  into,  there  is  a  mutual  mistake  in  relation  to  the  sub- 
ject matter,  such  contract  will  not  be  enforced  in  e(iuity.  Either  party  may 
apply  to  have  it  rescinded.  Daniel  v.  3Iitchell,  1  Storv",  173;  Ledger  v.  Bou- 
naflfe,  2  Barb..  475;  Suell  v.  Mitchell,  Go  ]Me.,  48;  Miles  v.  Stevens.' 3  Pa.  St., 
21;  Quick  v.  Fulton,  3  Gratt.,  193;  Pitcher  v.  Ilennesy,  48  N.  Y  .  41.5.  Lord 
Thurlow  says  in  Calverly  v.  Williams,  1  Yes.,  210:  "No  doubt  if  one  party 
thought  he  has  purchased  to/Kf  _/f<Z6',  and  the  other  party  thought  he  has  not 
sold,  that  is  a  ground  to  set  aside  the  contract  that  neither  party  may  be  dam- 
aged. Because  it  is  impossible  to  say,  one  shall  be  forced  to  give  that  price  for 
part  only,  which  he  intended  to  give  for  the  whole;  or  that  the  other  shall  be 
obliged  to  sell  the  whole  for  what  he  intended  to  be  the  price  of  part  only." 
See,  also,  Hitckock  v.  Giddins,  4  Price,  135. 

Mistake  in  reducind  uoreement  to  icritinr/.]  Where  the  contract  is  correctly 
understood  by  both  parties,  but  in  reducing  it  to  writing  an  error  is  made,  such 
writing  will,  in  an  equitable  action,  be  made  to  conform  to  the  true  agreement; 
it  will  not  be  rescinded.  Wake  v.  Hauoff,  1  H.  6c  C,  2o2;  Barrow  v.  IJarrow, 
18  Beav.,  519;  Scofield  v.  Lockwood,  32  id.,  430;  Desell  v.  Casey,  3  Dessau. 's 
Eq.,  84;  Leonard  v.  Austin,  2  How.  (Miss.),  888;  Ashurst  v.  Mill,  7  Hare,  502; 
Druiff  V.  Parker,  L.  R.,  5  Eq.,  137;  Murray  v.  Parker,  16  Beav.,  308;  Malms- 
bury  V.  Malmsbury,  31  id.,  407;  Reade  v.  Armstrong,  7  Ired.'s  Ch.,  375;  Wash- 
burn V.  Menell,  1  Day,  139;  McMillen  v.  McMillen,  7  Mou.,  560;  Kej-ton  v. 
Bradford,  5  Leigh,  38;  Brown  v.  Bonner,  8  id.,  1;  Finlev  v.  Lvou,  G  Cranch, 
238;  Scott  V.  Duncan,  1  Dev.'s  Eq.,  403;  Goodsell  v.  Field.  1.5  Yt.,  448;  Lar- 
kins  v.  Biddle,  2  Ala.,  252;  Xewcomer  v.  Kline,  11  Gill,  ct  Johns.,  457;  Col- 
lier v.  Lanier,  1  Kelly,  238;  Alexander  v.  Xewton,  2  Gratt.,  2UG;  Stedwell  v. 
Anderson,  21  Conn.,  139;  Manz  v.  Beekman  Iron  Co.,  9  Paige's  Ch.,  188; 
Clump's  App.,  65  Pa.  St.,  476;  Pickett  v.  Merchants'  Nat.  B'k,'"32  Ark..  34G. 
In  Rogers  v.  Odel,  36  Mich.,  411,  Campbell,  J.,  said  :  "  It  requires  very  strong 
equities  to  induce  a  court  to  refuse  to  enforce  a  written  contract,  even  where  a 
mistake  is  alleged  to  have  been  made  in  drawing  it  up."  It  is  not  enough  that 
one  of  the  parties  to  an  agreement  misunderstood  its  terms;  the  dilTerenee  be- 
tween the  real  agreement  and  the  written  contract  must  be  understood:  in  other 
words,  where  a  party  seeks  to  reform  a  written  instrument,  he  must  show  that 
a  material  stipulation  was  inserted  or  omitted  contrary  to  the  material  intention 
of  both  parties.  Nevins  v.  Dunlap,  33  X.  Y.,  G76;  Lyman  v.  Ins.  Co.,  17 
Johns.,  373;  Lanair  v.  Wvmau,  3  Kob.,  147;  Wemple  v.  Stewart,  22  Barb., 
154;  Peunell  v.  Wilson,  2' Abb.  Pr.  (X.  S),  466;  Cooper  v.  .Alutual  Fire  Ins. 
Co.,  50  Pa.  St.,  299;  Point  St.  Iron  Works  v.  Simmons,  11  R.  I.,  406. 

Mistake  of  the  scrivener.]  Sharswood,  .1.,  said,  in  Huss  v.  3Iorris,  63  Pa.  St., 
367:  "  It  is  the  well  settled-rule  in  this  State,  that  the  mistake  of  a  scrivener  in 
preparing  a  deed  or  other  writing,  may  be  shown  b_v  parol  evidence,  :ind  the 
instrument  reformed  accordingly.  It  is  but  the  exercise  of  the  equity  powers 
in  all  our  courts  from  the  earliest  days  of  the  province."  See,  also,  Winter- 
mute  V.  Snyder,  2  Green's  Ch.,  489;  Wooden  v.  Ilaviland.  18  Conn.,  101;  Col- 
lin V.  Lanier,  1  Kelley,  238;  McCann  v.  Letcher,  8  B.  Mou.,  320:  Elmore  v. 
Austin,  2  Root,  415;  Cook  v.  Preston,  2  Root,  78:  Chapman  v.  Allen.  Kerby, 
399;  Gower  V.  Sterner,  2  Whart ,  75;  Rogers  v.  Atkinson,  1  Kellv,  12;  Chew 
V.  Gillespie.  56  Pa.  St.,  308;  Wvcke  v.  Green,  16  Ga.,  49;  Cooke  v.  Husbands, 
11  Md..  492;  McDonald  v.  Starkie,  42  111.,  442;  Murphy  v.  Raney,  45  Cal.,  78; 
Pugh  V.  Chesseldine,  11  Ohio,  1U9.  The  Xew  York  Court  of  Appeals  sjiid,  in 
De  Peyster  v.  Hasbrouck.  1  Kernan,  582:  "  It  is  unnecessary  to  refer  to  cises 
to  establish  the  familiar  doctrine  that  where,  through  mistake  or  fnuul,  a  con- 
tract or  conveyance  fails  to  express  the  actual  agreement  of  the  parties,  it  will 
be  reformed  by  a  court  of  equity  so  as  to  correspond  with  the  actual  agreement." 

Slight  parol  proof  of  mistake -^iW  not  be  sufficient  to  enal)le  a  party  to  evade 
his  written  contract:  in  such  a  case,  great  attention  will  be  paid  to  what  is 
stated  by  the  other  partv  to  the  instrument.  Andrews  v.  Essex  Ins.,  3  Mason, 
6;  Kerr  on  Fraud  and  Mis.,  416;  Philpott  v.  Elliott,  4  Md.  Ch.,  273;  Bailey  v. 


398        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

Bailey,  8  Humph.,  2:J0;  Harrington  v.  Harrington,  2  How.  (Mi.ss.),  721;  Hall 
V.  Claggett,  2  :\Icl.".s  Cli.,  51;  Perry  v.  Pierson,  1  Humph.,  431;  Adams  v.  Rob- 
ertsonri?  111.,  45;  Dmaut  v.  Bacot,  15  N.  J.  Eq.,  411. 

Rule  in  the  United  States.]  It  may  now  be  said  to  be  the  well-settled  rule  in 
this  country  that,  in  a  case  where  a  party  plaintiff  would  be  entitled  to  main- 
tain an  action  that  a  written  agreement  be  reformed,  he  could  introduce  parol 
evidence  of  mistake  on  a  bill  I'or  specific  performance.  Keisselbrack  v.  Liv- 
ingston, 4  Johu.'s  Ch.,  144:  Philpott  v.  Elliott,  4  Md.  Ch.,  273;  Coles  v. 
Brown,  10  Paige's  Ch.,  .535;  Lyman  v.  United  Ins.  Co.,  17  John.,  377:  Gouver- 
neur  v.'  Titus,  1  Edw.  Ch.,  477;  Bellows  v.  Stone,  14  N.  H.,  175:  Beardsley  v. 
Knight.  10  Vt.,  185;  Wooden  v.  Haviland,  18  Conn.,  101;  "White  v.  Port 
Huron  R.  R.  Co.,  13  Mich.,  356.  In  some  of  the  States,  however,  the  rule  is 
modified  with  the  qualification  that  in  cases  where  the  contract  is  within  the 
Statute  of  Frauds,  while  parol  evidence  is  admissible  on  the  part  of  the  plain- 
tiff to  restrict  or  even  modify  a  written  instrument,  yet  it  cannot  be  received 
to  enlarsre  or  extend  its  powers.  Glass  v.  Hulbert,  102  Mass.,  24;  Thomas  v. 
McCorruick,  9  Dana,  108;  Elder  v.  Elder,  10  Me.,  80;  Whittier  v.  Van  Schaick, 
5  Oregon,  113;  Osboru  v.  Phelps,  19  Conn.,  62. 

Rule  as  to  relief  from  mistake  whether  parti/  plaintiff  or  defendant '\  Kent,  Ch., 
says,  in  Keisselbrack  v.  Livingston,  4  Johu.'s  Ch.,  144:  "Why  could  not  the 
party  aggrieved  by  a  mistake  in  an  agreement,  have  relief  as  well  when  he  is  a 
plaintilf  as  when  he  is  defendant  V  It  cannot  make  any  difference  in  the 
reasonableness  or  justice  of  the  remedy,  whether  the  mistake  were  to  the  preju- 
dice of  one  party  or  the  other.  If  the  court  be  a  competent  jurisdiction  to 
correct  such  a  mistake  (and  that  is  a  point  understood  and  settled),  the  agree- 
ment when  corrected  and  made  to  speak  the  real  sense  of  the  parties,  ought  to 
be  enforced  as  well  as  any  other  agreement  perfect  in  the  first  instance.  It 
ought  to  have  the  same  efficacy,  and  be  entitled  to  the  same  protection  when 
made  accurate  under  the  decree  of  the  court,  as  when  made  accurate  by  the 
act  of  the  parties."  On  this  subject  the  following  language  is  u.sed  in  Story's 
Eq  Jur.,  §  IGl  (note):  "  It  is,  in  effect,  a  declaration  that  parol  evidence  shall 
be  admissible  to  correct  a  writing  as  against  a  plaintiff,  but  not'  in  favor  of  a 
plaintiff  seeking  specific  performance.  There  is,  therefore,  no  mutualitj'  or 
equality  in  the  operation  of  the  doctrine.  The  ground  is  very  clear  that  a 
court  of  equity  ought  not  to  enforce  a  contract,  where  there  is  a  mistake, 
against  the  defendimt  insisting  upon  and  establishing,  for  it  would  be  inequita- 
ble and  unconscientious.  And  if  the  mistake  is  vital  to  the  contract,  there  is  a 
like  clear  ground  why  equity  should  interfere  at  the  instance  of  the  party  as 
plaintiff,  and  cancel  it;  and  if  the  mistake  is  partial  only,  why,  at  his  instance, 
it  should  reform  it.  In  these  cases,  the  remedial  justice  is  equal;  and  the  parol 
evidence  to  establish  it  is  equally  open  to  both  parties  to  use  as  proof .  Why 
should  not  the  party  aggrieved  by  a  mistake  in  an  agreement,  have  relief  in  all 
cases,  where  he  is  plaintiff  as  well  as  where  he  is  defendant "?  Why  should  not 
parol  evidence  be  equally  admissible  to  establish  mistake  as  the  foundation  of 
relief  in  each  case  ?  The  rules  ought  certainly  to  work  equally  for  the  benefit 
of  each  party.  It  may  be  added  that  if  the  doctrine  be  founded  upon  the  mi- 
propriety  of  admitting  parol  evidence  to  contradict  a  written  agreement,  that 
rule  is  not  more  broken  in  upon  by  the  admission  of  it  for  the  pfaintiff,  than  it 
is  by  the  admission  of  it  for  the  defendant.  If  the  doctrine  had  been  confined 
to  cases  arising  under  the  Statute  of  Frauds,  it  would,  if  not  more  intelligible, 
at  least  have  been  less  inconvenient  in  practice.  But  it  does  not  appear  to  have 
been  thus  restricted,  although  the  cases  in  which  it  has  been  principally  relied 
on,  have  been  of  that  description.  It  will  often  be  quite  as  unconscientious  for 
a  defendant  to  shelter  himself  under  a  defense  of  this  sort,  against  a  plaintiff 
seeking  the  specific  performance  of  a  contract  and  the  correction  of  a  mistake, 
as  it  will  be  to  enforce  a  contract  against  a  defendant  which  embodies  a  mis- 
take to  his  prejudice." 


INCAPACITY  TO  PERFORM  CONTRACT.        399 


CHAPTER  XVI. 

OF  THE  INCAPACITY  OF  THE  COURT  TO  PERFORM  PART  OF 
THE  CONTRACT. 

§  803.  The  court  Avill  not,  as  a  general  rule,  compel  spe- 
cific performance  of  a  contract,  unless  it  can  execute  the 
whole  contract ;  or,  as  Lord  Eomilly,  M.  R.,  expressed  it : 
"This  court  cannot  specifically  perform  the  contract  piece- 
meal, but  if  must  be  performed  in  its  entirety  if  performed 
at  all. "(a)  It  often,  therefore,  becomes  important  to  inquire 
whether  a  contract  is  entire  or  divisible,  or,  in  other  words, 
what  is  the  whole  contract  which  must  be  executed  ;  and  it 
is  proposed  in  the  present  chapter,  first,  to  inquire  what 
contracts  are  divisible ;  secondly,  to  illustrate  the  general 
doctrine  of  the  court  above  stated  ;  and,  thirdly,  to  consider 
the  exceptions  or  apparent  exceptions  to  the  rule. 

§  803.  It  is  obvious  that  the  decision  of  the  question 
whether  a  contract  is  entire  or  divisible,  must  depend  on  the 
particular  nature  of  each  contract,  and  the  terms  in  Avhicli 
it  is  concluded :  but  some  general  rules  may  be  gathered 
from  the  cases. 

§  804.  A  contract  for  the  sale  of  property  in  one  lot  will 
generally  be  considered  indivisible.  Thus,  in  a  case  where 
two  undivided  seventh  shares  of  land  were  sold  in  one  lot, 
the  court  refused  to  enforce  specific  performance  where  a 
good  title  could  be  made  to  one-seventh  only  :{b)  and  the 
purchaser  of  the  entirety  will,  of  course,  not  be  compelled 
to  take  six  undivided  seventh  parts  of  the  estate,  (c)  And 
so  in  a  case,  where  two  persons  were  owners  of  an  estate  in 
undivided  moieties,  and  the  plaintiff  sought  to  enforce  an 
alleged  contract  by  them  to  lease  the  coals  under  it,  but 
could  not  prove  any  such  contract  against  one  of  the  own- 
ers, one  ground  on  which  the  bill  was  dismissed  against  the 
other  owner  also  was  that  he  had  never  contracted  to  lease 

(a)  Merchants'  Trading  Co.  v.  Banner,  L.  S.  C.  (same  note),  Roffey  v.  Shollcross,  i 

R.  12  Eq  ,  -25;  ef.  per  Turner,  L.  J.,  in  Kernot  Mad.,  2-27. 

V.  Potter,  3  De  G.  F.  &  J.,  450.  (c)  Dalby  v.  Pullen,  3  Sim.,  29. 

(&)  Roffey  V.  Shatcross,  2  Bro.  C.  C,  IIS  n.; 


400        FKY  ON  SPECIFIC  PEKFOKMANCE  OF  CONTRACTS. 

one  share  alone.  If  he  had  held  himself  out  and  contracted 
as  the  owner  of  the  whole,  then  the  case  would  have  been 
different.  (fZ)' 

§  805.  But  where  properties  are  of  tw^o  descriptions — as, 
for  example,  a  ship  and  the  freight — the  fact  that  they  are 
both  included  in  one  instrument,  and  dealt  with  for  one 
entire  sum,  does  not  seem  conclusively  to  render  the  con- 
tract indivisible,  (e)"" 

(d)  Viifie  V.  Griffith,  1  De  G.  M.  &  G.,  80, 85.       (<)  Mestaer  v.  Gillespie,  11  Ves.,  621,  629. 

'  Thus  a  contract  for  the  sale  of  land.  ' '  bounded  as  expressed  in  the  survey- 
made  by  C.  K.,  and  estimated  by  the  said  C.  K.  at  1,022|  acres,"  for  which  the 
vendee  was  to  pay  $25,568.75,  which  was  just  twenty-five  dollars  per  acre  for 
that  quantity,  Ava's  held  to  have  been  a  sale  in  gross.  But  articles  of  agreement 
for  the  sale  of  a  tract  of  land,  both  parties  believing  it  to  contain  100  acres,  for 
$2,00U,  will  be  considered  as  importing  a  sale  by  the  acre,  where  it  appears  that 
the  vendee  refused  to  take  it  without  a  survey.  In  this  case  the  vendor  acqui- 
esced in  the  survey,  and  an  excess  of  acres  having  been  found,  the  vendee  was 
held  liable  for  such  excess  at  the  rate  of  twenty  dollars  per  acre.  Clark  v. 
Baker,  5  Mete,  452,  a  case  decided  at  law  by  Hubbard,  J.,  furnishes  an  excel- 
lent illustration  of  the  entirety  of  contracts  generally.  There  A.  purchased  of 
B.  a  cargo  of  white  and  yellow  corn,  on  board  of  B.  's  schooner,  the  quantity 
not  being  known,  and  agreed  to  pay  one  sum  per  bushel  for  the  yellow,  and 
another  sum  per  bushel  for  the  white,  B.  warranting  it  to  be  of  certain  quality. 
A.  paid  B.  $1,200  "on  account  of  corn  per  schooner."  The  schooner  was 
hauled  to  A.'s  wharf,  and  he  took  therefrom  and  put  into  his  warehouse  a  part 
of  the  corn,  and  then  refused  to  receive  any  more,  because  the  residue  was  not 
such  as  B.  had  warranted  it  to  be,  and  immediately  gave  notice  to  B.  that  he 
would  receive  no  more  of  the  cargo,  and  requested  B.  to  take  the  schooner 
away.  The  corn  thus  taken  by  A.  amounted,  at  the  agreed  price  per  bushel, 
to  $1,067,  and  A.  sued  B.  in  an  action  for  money  had  and  received,  to  recover 
back  the  difference  between  that  sum  and  the  $1,200.  Held,  that  the  contract 
was  entire,  and  that  the  action  could  not  be  maintained :  that  A.  might  have 
rescinded  the  contract  by  returning  all  the  corn,  and  then  have  maintained  an 
action  to  recover  back  the  money  advanced,  or  might  have  retained  an  action 
on  the  warranty.  "Was  there  one  bargain  for  the  whole  cargo,"  says  Hub- 
bard, J.,  "or  was  there  two  distinct  contracts  for  the  yellow  and  white  corn, 
or  was  there  a  separate  and  independent  bargain  for  each  bushel  of  corn  con- 
tracted for,  in  consequence  of  which  the  receipt  of  one  or  more  bushels  of  the 
warranted  quality,  imposed  no  duty  upon  the  plaintiff  to  retain  the  residue  ? 
And  we  are  of  opinion  that  the  contract  was  an  entire  one.  The  bargain  was 
not  for  2,000  or  3,000  bushels  of  corn,  but  it  was  for  the  cargo  of  the  schooner 
Shylock,  be  the  quantity  more  or  less — a  cargo  known  to  consist  of  two  different 
kinds  of  corn:  and  the  means  taken  to  ascertain  the  amount  to  be  paid  were  in 
the  usual  mode,  by  agreeing  on  the  rate  per  bushel.  *  *  *  There  is  no 
ground  on  the  evidence  as  reported,  to  maintain  that  there  were  two  contracts 
for  the  distinct  kinds  of  corn:  for  it  does  not  appear  but  that  the  1,405  bushels 
that  were  retained,  consisted  of  a  part  of  each.  So  that  the  plaintiff,  to  sup- 
port his  position,  must  contend,  as  he  has  contended,  that  the  bargains  in  this 
case  were  separate  bargains  for  each  several  bushel  of  a  given  quality,  and  for 
a  distinct  price.  But  this  separation  into  parts  so  minute  of  a  contract  of  this 
nature,  can  never  be  admitted;  for  it  might  lead  to  the  multiplication  of  suits 
indefinitely,  in  giving  a  distinct  right  of  action  for  every  distinct  portion.  As 
well  might  a  man  who  sold  a  chest  of  tea  by  the  pound,  or  a  piece  of  cloth  by 
the  yard,  or  a  piece  of  land  by  the  foot  or  acre,  contend  that  each  pound,  yard, 
foot  or  acre  was  the  subject  of  a  distinct  contract,  and  each  the  subject  of  a 
separate  action. 

'  But,  as  a  general  rule,  if  the  consideration  to  be  paid  is  single  and  entire, 


INCAPACITY  TO  PERFOEM  CONTRACT.        401 

§  806.  After  some  vacillation  in  the  older  cases, (/)  it  has 
Tbeen  decided  at  common  law,  that  where  property  is  sold  in 
distinct  lots,  there  is  a  separate  contract  for  each  lot,(p') 
each  buyer  having  a  complete  right  of  action  after  he  is  de- 
€lared  the  purchaser  of  each  lot.  {h)  And  in  equity  the  same 
is  prima  facie  the  case,  so  that,  in  the  absence  of  special 
circumstances,  a  vendor  is  entitled  to  compel  the  purchaser 
of  two  lots  to  complete  his  purchase  of  the  one,  though  he 
may  fail  in  making  out  a  title  to  the  other. (/)'     But  where, 

(/)  See  the  cases  reviewed  by  Lord  Broug-    Lord  Dormer,  4  B.  &  Ad.,  77;  per  Coleridge, 
ham  in  Casamajor  v.  Strode,  2  My.  &  K.,  724;    J.,  in  Seaton  v.  Booth,  4  A.  &  E.,  536. 
Chambers  v.  Griffiths,  1  Esp  ,  150,  seems  to  be       Qi)  Emraerson  v.  Heelis,  2  Taunt.,  38,  45. 
overruled.  (i)  Lewin  v.  Guest,  1  Russ.,  325.   See,  also, 

(fir)  James  v.  Shore,  1  Stark.,  426;  Roots  v.    Buckmaster  v.  Harrop,  7  Ves  ,  341;  S.  C,  13 

id. ,  456. 

the  contract  must  be  held  to  be  entire,  although  the  subject  of  the  contract  may- 
consist  of  several  distinct  and  wholly  independent  items.  Pars.  Contr.,  vol.  1, 
pt.  2,  ch.  1,  p.  31.  Therefore  in  Miner  v.  Bradley,  22  Pick.,  457,  where  the 
defendant  put  up  at  auction  a  certain  cow  and  400  lbs.  of  hay,  both  of  which 
the  plaintiff  bid  off  for  $17,  which  he  paid  at  the  time.  He  then  received  the 
cow,  and  afterwards  demanded  the  hay,  which  was  refused  by  the  defendant, 
who  had  used  it.  This  action  was  brought  to  recover  back  the  value  of  the 
hay.  The  defendant  objected  that  the  contract  was  entire;  that  the  plaintiff 
could  not  recover  back  the  price  paid,  or  any  portion  of  it,  without  rescinding 
the  whole  contract,  and  that  this  could  not  be  done  without  returning  the  cow. 
And  this  objection  was  sustained  by  the  court. 

1  So  in  the  case  of  Miner  v.  Bradley,  cited  above,  Morton,  J.,_said:  There 
may  be  cases,  where  a  legal  contract  of  sale,  covering  several  articles,  may  be 
severed,  so  that  the  purchaser  may  hold  some  of  the  articles  purchased,  and, 
not  receiving  others,  may  recover  back  the  price  paid  for  them.  Where  a  num- 
ber of  articles  are  bought  at  the  same  time,  and  a  separate  price  agreed  upon 
for  each,  although  they  are  all  included  in  one  instrument  of  conveyance,  yet 
the  contract,  for  a  sufficient  cause,  may  be  rescinded  as  to  part,  and  the  price 
paid  recovered  back,  and  may  be  enforced  as  to  the  residue.  But  this  cannot 
properly  be  said  to  be  an  exception  to  the  rule,  because,  in  effect,  there  is  a 
separate  contract  for  each  separate  article.  This  subject  is  well  explained,  and 
the  law  well  stated,  in  Johnson  v.  .Johnson,  3  B.  &  P.,  162.  Johnson  v.  John- 
son is  this :  In  that  case  the  plaintiff  had  purchased,  from  the  same  persons, 
two  parcels  of  real  estate,  the  one  for  £700,  the  other  for  £300,  and  had  taken 
one  conveyance  for  both.  After  having  paid  the  purchase  money,  and  taken 
possession,  he  was  evicted  from  the  smaller  parcel,  in  consequence  of  a  defect  in 
the  title  derived  under  the  purchase,  and  thereupon  brought  an  action  for  money 
had  and  received  to  recover  back  the  £300,  at  the  same  time  refusing  to  give 
.  up  the  parcel  of  land  for  which  £70(t  had  been  paid.  And  the  court  held  that 
he  was  entitled  to  recover.  Lord  Alvanley,  in  delivering  the  judgment  of  the 
court,  said:  "  My  difficulty  has  been,  how  far  the  agreement  is  to  be  considered 
as  one  contract  for  the  purchase  of  both  sets  of  premises,  and  how  far  the 
party  can  recover  so  much  as  he  has  paid  by  way  of  consideration  for  the  part 
of  which  the  title  has  failed,  and  retain  the  other  part  of  the  bargain.  This, 
for  a  time,  occasioned  doubt  in  my  mind;  for,  if  the  latter  question  were  in- 
volved in  this  case,  it  would  be  a  question  for  a  court  of  equity.  If  the  ques- 
tion were  how  far  the  particular  \y.\/ .  .  f  vhich  the  title  has  failed,  formed  an 
essential  ingredient  of  the  bargain,  the  grossest  injustice  would  ensue  if  a  party 
were  suffered,  in  a  court  of  law,  to  say  he  would  retain  all  of  which  the  title 
was  good,  and  recover  a  proportionate  part  of  the  purchase-  money  for  the  rest. 
Possibly  the  part  which  he  retained  might  not  have  been  soul,  unless  ths  other 
part  had  been  taken  at  the  same  time;  and  ought  not  to  be  valued  m  proporUon 
to  its  extent,  but  according  to  the  various  circumstances  connected  with  it.    :But 

26 


402        FlIY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

from  the  nature  of  the  contract,  or  the  property  that  is  the 
subject  of  it,  or  upon  matters  known  to  both  parties,  one  of 
them  can  prove  tliat  the  one  transaction  was  dependent  on 
the  other,  the  two  form  one  contract,  although  there  may  be 
no  express  statement  to  that  effect,  (y)  And  the  parties  by 
their  subsequent  dealing  may  convert  two  or  more  distinct 
contracts  into  an  entire  one,  as  by  entering  into  one  contract 
for  the  sale  of  the  several  subject  matters  at  one  aggregate 
price.  (^)    Thus  where  A.  purchased  by  auction  three  lots  of 

(j)  Casamajor  v.  Strode,  2  My.  &  K.,  722;    Cox,  273;   and  at  common  law,  Gibson  v. 
Poole  V.  Shergold,  2  Bro.  C.  C,  118;  S.  C,  1    Spurrier,  Peake,  Add.  C  49. 

(k)  Dykes  v.  Blake,  4  Bing.  (N.  C),  463. 


a  court  of  equity  may  inquire  into  all  the  circumstances,  and  may  ascertain 
bow  far  one  part  of  the  bargain  formed  a  material  ground  for  the  rest,  and  may 
award  a  compensation  according  to  the  real  state  of  the  transaction.  In  this 
case,  however,  no  such  question  arises;  for  it  appears  to  me  that,  although  both 
pieces  of  ground  were  bargained  for  at  the  same  time,  we  must  consider  the 
bargain  as  consisting  of  two  distinct  contracts;  and  that  the  one  part  was  sold 
for  £800,  and  the  other  for  £700."  Morton,  J.,  then  continued:  "Had  the 
plaintiff  bid  off  the  cow  at  one  price,  and  the  hay  at  another,  although  he  had 
taken  one  bill  of  sale  for  both,  it  would  have  come  within  the  principles  of  the  above 
case."  Another  case  in  point  is  Robinson  v.  Green,  3  Mete,  159.  That  was  an 
action  of  assumpsit  to  recover  compensation  for  services  rendered  by  the  plain- 
tiff to  the  defendant  as  an  auctioneer,  in  selling  seventy-six  lots  of  wood.  The 
plaintiff  was  a  licensed  auctioneer  for  the  county  of  Middlesex.  Two  of  the  lots 
of  wood  sold  were  in  the  county  of  Middlesex,  and  the  rest  were  in  the  county 
of  Suffolk.  The  defendant  contended  that  the  claim  of  the  plaintiff  was  entire ; 
that  part  of  it  was  a  claim  for  services  which  were  illegal,  in  selling  property 
out  of  his  county;  and  that  the  contract  being  entire,  and  the  consideration,  as 
to  part,  at  least,  illegal,  the  action  could  not  be  maintained.  But  Chief  Justice 
Shaw  decided  to  the  contrary,  upon  the  grounds  that  plaintiff's  claim  for  com- 
pensation arose  upon  each  several  sale,  and  was  complete  upon  the  conclusion 
of  every  such  sale.  That  there  was  express  promise  to  pay  him  a  fixed  sum 
upon  the  termination  of  the  entire  sale  of  all  the  lots;  and,  therefore,  part  of 
the  consideration  being  illegal,  it  did  not  avoid  the  whole  contract.  See  Pars. 
Contr.,  vol.  2,  p.  30.  "But  where  a  contract  for  the  sale  and  delivery  of  prop- 
erty consists  of  several  agreements,  independent  of  each  other,  and  the  vendor 
fulfills  the  agreement  to  be  the  first  performed,  but  violates  all  the  others. 
Qufere,  can  he,  after  he  has  violated  all  other  agreements,  recover  the  price  of 
the  property  delivered  under  the  first  agreement  ?  McKnight  v.  Dunlop,  4 
Barb.,  36.  Woods  v.  Russell.  5  B.  <k  Aid.,  943,  is  also  in  point.  There  a  ship 
was  built  upon  a  special  contract,  to  the  effect  that  given  portions  of  the  price 
should  be  paid  according  to  the  progress  of  the  work,  to  wit:  part  when  the 
keel  was  laid,  part  when  the  light  plank,  and  the  remainder  when  the  ship  was 
launched.  It  was  held  that  there  arose  a  separate  contract  for  each  installment, 
and  therefore  that  when  the  keel  was  laid,  or  any  other  part  of  the  ship  for 
which  an  installment  was  to  be  paid  was  completed,  that  an  action  could  be 
immediately  maintained  to  recover  the  installment.  In  Wright  v.  Petrie,  1  S. 
&  M.  Ch.,  282,  it  was  decided  that  where  a  contractor,  constructing  a  railroad, 
is  to  be  paid  by  installments  as  the  work  advances,  the  contract  is  not  entire, 
and  the  contractor  may  recover  a  ratable  portion  of  the  contract  price  accord- 
ing to  the  amount  of  work  done,  whenever  the  contract  may  be  abandoned. 
See  Cunningham  v.  Morrell,  10  John  R.,  202;  Tompkins  v.  Elliott,  5  Wend., 
496;  Goodwm  v.  Holbrook,  4  id.,  337;  Dox  v.  Day,  3  id.,  3o6;  Baldwin  v. 
Mann,  2  id.,  399;  Sage  v.  Ranney,  id.,  532;  Gould  v.  Allen,  1  id.,  182;  Read  v. 
Moore,  19  John.  R.,  237;  Rol)  v.  3Iontgomery,  20  id.,  15;  Gazely  v.  Price,  16 
id.,  269;  Ilaiden  v.  Kfeitsinger,  17  id.,  293. 


IXCAPACITY  TO  PERFORM  CONTRACT.        403 

100  sliares  each,  and  after  tlie  sale  received  the  shares,  paid 
the  price,  and  received  a  bill  of  parcels  describing  the  trans- 
action as  a  sale  of  300  shares  :  it  was  held,  that  as  each  lot 
was  knocked  down  there  was  a  distinct  contract  for  the  sale 
of  100  shares,  but  that  the  subsequent  dealings  showed  that 
the  parties  treated  the  transaction  as  one  entire  sale  of  300 
shares.  (Z) 

§  807.  The  mere  fact  of  different  prices  being  fixed  for 
different  parts  of  the  subject  matter  of  the  contract,  will  not 
necessarily  make  it  divisible  :  so  where  a  person  went  into 
a  shop  and  bought  various  goods  at  distinct  prices  for  each, 
the  contract  was  still  held  to  be  single,  (m)  And  where  one 
price  was  fixed  for  the  land,  and  another  (a  valuation 
price)(?i)  for  the  timber,  and  the  vendor  could  not  show  a 
title  to  all  the  timber  by  reason  of  the  copyhold  tenure  of 
parts  of  the  estate,  which  were  not  distinguishable  from  the 
freehold  ;  the  court  held  that  that  was  only  one  contract, 
that  consequently  the  vendor  was  only  bound  to  make  out 
the  title  according  to  the  contract,  and  that  the  title  to  the 
land  was  the  title  to  the  timber ;  and,  as  the  conditions  of 
sale  provided  for  the  copyhold  tenure  as  to  the  lands,  the 
contract  was  enforced  as  a  Avhole.(o)  • 

§  808.  In  a  case  in  which,  by  the  same  contract,  A.  con- 
tracted to  sell  an  estate  to  B.,  and  B.  contracted  to  sell 
another  estate  to  A.,  the  contracts  in  resx)ect  of  the  two 
estates  were  held  to  be  independent  of  one  another  :(^) 
whilst  in  a  case  of  cross  contracts  for  the  sale  of  goods,  the 
court  of  exchequer  .held  the  contracts  deiDendent.(^) 

§  809.  Where  the  contract  itself  contains  a  provision  for 
its  j)iecemeal  execution,  the  contract  is  treated  as  divisible. 
So  in  a  building  contract,  where  the  landowner  agreed  to 
grant  sex^arate  leases  of  separate  plots  as  and  when  the 
buildings  on  each  plot  reached  a  certain  stage,  it  was  held 
that  the  contract  might  be  performed  in  separate  parts,  and 
that  it  was  no  answer  to  the  builder  or  his  assign  who  sued 
for  its  performance  as  regards  one  plot  to  show  that  it  was 
not  performed  by  the  builder  as  regards  other  plots,  (r) 

Q)  Franiilyn  v.  Lamonci,  4  C.  B.,  637.  (o)  Crosse  v.  Lawrence,  9  Ha.,  462;  Crosse 

(m)  Baldey  v.  Parker,  2  B.  &  C,  37-  V.  Jieene,  9  Ha.,  469. 

(u)  Cf  Kichardson  v.  Smith,  L.  R.  5  Ch.,        {p)  Croome  v.  Lediarcl,  2  My.  &  K.,  251. 
64S,  and  supra,  §  347.  (?)  Atkinson  v.  Smitb,  14  M.  &  W.,  695. 

(?)   Wilkinson  v.  Clements,  L.  R.  8  Ch.,  96. 


404        VllY  ox  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

§  810.  In  like  manner,  where  there  are  two  contempo- 
raneous contracts  which  the  parties  intended  to  be  sepa- 
rated, the  court  will  treat  them  as  separate,  and  will  not 
allow  an  objection  to  the  one  contract  to  bar  the  perform- 
ance of  the  other.  (5) 

§811.  It  is,  as  we  have  already  seen,  a  principle  of  the 
court,  that  it  will  not  compel  specific  performance  of  exe- 
cutory contracts  unless  it  can  at  the  time  execute  the  whole 
contract  on  both  sides.'  On  this  principle,  where  there  was 
a  contract  between  two  neighboring  landholders  to  change 
the  course  of  a  stream,  and  one  of  the  terms  of  the  contract 
was  that,  if  any  damage  should  accrue  to  the  lands  of  the 
defendant  from  a  dam  which  was  agreed  to  be  erected,  the 
plaintiff  would  give  an  equivalent  in  land  to  the  defendant, 
the  quantity  of  land  to  be  ascertained  by  arbitrators  ;  this 
beino-  a  thing  which  the  court  could  not  do  in  prcesentl,  and 
the  court  holding  that  the  parties  entering  into  a  covenant 
to  do  it  would  not  be  a  specific  performance  of  the  contract, 
the  bill  was  dismissed,  as  the  whole  contract  could  not  be 
carried  into  effect. (^^)  And  where  the  owner  of  a  patented 
invention  entered  into  a  contract  with  certain  persons,  who 
with  himself  were  to  form  a  company,  to  the  promotion  of 

(s)  Odessa  Tramways  Co.  v.  Mendel,  8  Ch.  (0  Gervais  v.  Edwards,  2  Dr.  &  War.,  80. 
D.,  235. " 

1  Trust  created  under  a  contract]  Where  a  tru.st  lias  been  created  under  a 
contract,  which  is  sought  to  be  enforced,  a  party  cannot  claim  the  benefit  of 
such  portions  as  are  to  his  advantage,  and  repudiate  the  rest.  Pajol  v.  McKin- 
lay,  42  Cal.,  559;  see,  also,  Kraft  v.  De  Forest,  53  id.,  (356. 

Contract  as  to  performance  of  future  acts,  icMch  the  court  cannot  com])el.']  In 
such  case  specific  performance  will  be  refused.  The  chancellor  said  in  Gervais 
V.  Edwards,  2  Dr.  &  W.,  80:  "As  far  as  the  merits  of  the  case  go,  I  would 
decree  the  specific  performance  of  the  contract;  but  I  do  not  see  how  it  is  pos- 
sible. If  I  do  execute  it  at  all,  I  must  execute  it  in  toto  ;  and  how  can  I  exe- 
cute it  prospectively  ?  The  court  acts  only  on  the  principle  of  executing  it  in 
speck,  and  in  the  very  terms  in  which  it  has  been  made.  Therefore,  when  you 
come'  to  the  specific  execution  of  a  contract  containing  many  particulars,  you 
must  see  that  it  is  possible  to  execute  it  effectively.  The  court  cannot  say  that 
when  an  event  arises  hereafter,  it  will  then  execute  it.  In  the  case  of  a  decree 
for  the  execution  of  a  contract  for  the  sale  of  timber,  it  is  no  objection  that  it 
is  to  be  cut  at  intervals.  That  is  certain,  and  there  mere  delay  will  not  pre- 
vent the  court  from  executing  it.  There  the  agreement  is  executed  in  specie. 
The  court  decrees  to  one  the  very  timber  contracted  for;  to  the. other,  ths  very 
price.  If  I  am  callpd  nn  now  to  execute  the  agreement,  I  can  only  specifically 
execute  a  portion,  whereas  I  am  bound  to  execute  all.  No  precedent  has  been 
cited;  but,  indeed,  none  is  necessary.  It  is  a  question  of  principle;  and  I  am 
clearly  of  opinion  that  if  I  give  a  decree  now,  it  would  not  be  a  specific  execu- 
tion of  the  contract,  but  only  a  declaration  that  there  ought  to  be  a  specific 
execution  of  it  hereafter.  I  must  therefore  leave  the  phuntiff  to  his  remedy  at 
law."  See,  also,  Fallon  v.  llailroad  Co,,  1  Dillon,  121;  Sfocker  v.  Wedder- 
burn,  3  K.  &  J..  393. 


INCAPACITY  TO  PERFORM  CONTRACT.        405 

which  he  was  to  give  his  services  for  two  years,  and  he  was 
to  do  his  best  to  improve  the  invention  for  the  benefit  of  tlie 
company,  and  on  the  refusal  of  these  persons  to  go  forward 
with  the  company,  the  patentee  filed  a  bill  for  the  specific 
performance  of  the  contract :  the  court  held,  on  demurrer, 
that  as  it  would  have  been  impossible  to  enforce  against  the 
plaintiff  the  stipulations  on  his  part,  he  could  not  sue  for 
performance  ;  and  further,  that  the  court  could  not  carry 
the  contract  into  effect  by  directing  the  parties  to  execute  a 
deed,  for  the  contract  was  to  do  certain  acts,  and  not  to 
execute  covenants  to  do  them.  (2^) 

§  8l!2.  So,  again,  where  a  contract  was  entered  into  by  a 
shipbuilder  to  alter  a  ship,  and  it  was  agreed  tliat  in  default 
of  performance  by  him  the  owners  might  enter  and  make 
the  alterations :  default  was  made  by  the  shipbuilder,  where- 
uj)on  the  owners  filed  a  bill  to  enforce  their  right  to  enter 
and  make  the  alterations :  but  on  demurrer  the  bill  was  dis- 
missed. (?)) 

§  813.  So  wherever  that  which  the  plaintiff  is  to  give  as 
the  consideration  moving  from  him  is  something  to  be  done 
at  a  future  time,  and  which  the  court  cannot  enforce,  spe- 
cific performance  of  the  contract  will  be  refused. (-w) 

§  814.  The  principle  that  the  court  will  not  partially 
enforce  contracts  is  illustrated  by  many  other  cases.  Thus, 
where  there  was  a  partnership  contract  for  an  absolute  term 
of  years,  leaving  undefined  the  amount  of  capital  'and  the 
manner  in  which  it  was  to  be  provided,  this  being  a  con- 
tract which  in  its  entirety  the  court  could  not  enforce,  the 
court  refused  to  enforce  it  in  part,  by  refusing  the  represen- 
tatives of  a  deceased  partner  a  decree  for  the  dissolution  of 
the  partnership  and  the  sale  of  the  partnership  property. (a;) 
And  in  another  case  the  court  refused  to  separate  the  parts 
of  an  award  which  were  capable  of  specific  performance 
from  those  which  were  not.  (2/) 

§  815.  It  is,  as  will  have  been  already  gathered,  imma- 
terial whether  the  things  which  the  court  cannot  specifically 
enforce  are  to  be  done  by  the  plaintiff  or  by  the  defendant. 

(M)  Stocker  v.  Wedderburn,  3  K.  &  J..  393.  (x)  Downs  v.  Collins,  6  Ha..  418. 

(r)  Merchants'  Trading  Co.  v.  BaMner,  L.  iy)  Nickels  v.  Hancock,  7  De  (i.  M.  &  G., 

R.  12  Eq.,  18.  300.     See,  alio,  VaneittArt  v.  VansUtart,  4  K. 

(M>)  Per  Wijtram,  V.  C,  in  Warinj?  v.  Man-  &  J  ,  62,  aflirmed  2  De  G   &  J.,  249. 
Chester,  Sheffield  and  Lincolnshire  Railway 
Co.,  7  Ha  ,  493. 


400         V\l\  ox  SPECIFIC  PERFOKMAXCE  OF  CONTRACTS. 

So  wliere  tlie  clefeiidant  ngreed  to  grant  a  lease  of  a  coal 
mine  to  tlie  plaintiff,  and  the  plaintiff  agreed  to  employ  the 
defendant  as  manager,  specific  performance  of  the  part  rela- 
tive to  the  lease  was  refused.  (^) 

§  816,  Where  the  contract  stipulates  for  future  acts,  but 
is  silent  as  to  any  deed  to  be  executed  to  secure  their  per- 
formance, the  court,  as  we  have  seen,  will  not  consider  the 
execution  of  such  a  deed  any  performance  of  the  stipula- 
tion. Other  cases  have  arisen,  where  the  contract  contemp- 
lates some  deed  or  obligation.  Where  there  was  a  contract 
to  execute  works  of  such  a  nature  that  the  court  could  not 
superintend  their  performance,  and  in  the  contract  was  a 
stipulation  that  the  contractors  should  give  a  bond  to  secure 
the  performance  of  the  contract :  the  court,  refusing  to  de- 
cree performance  of  the  works,  refused  also  to  decree  the 
execution  of  the  bond,  as  that  would  have  been  a  piecemeal 
performance  of  the  contract,  and  the  stipulations  as  to  the 
works  were  the  substance  of  the  contract,  and  that  as  to  the 
bond  only  incident  to  them. (a) 

§  817.  But  where  the  contract  is  to  do  a  thing,  and  to 
execute  a  deed  for  that  purpose,  and  this  deed  covers,  so  to 
say,  the  whole  of  the  contract,  or  the  whole  of  so  much  of 
the  contract  as  is  incapable  of  immediate  performance,  the 
court  will,  it  seems,  enforce  the  contract  by  the  execution 
of  the  deed,  though  the  acts  to  be  done  be  future  and  to  be 
done  from  time  to  time.  (6)  The  real  contract  here  which 
the  court  enforces  is  a  contract  to  execute  the  deed. 

§  818.  In  Wilson  v.  The  West  Hartlepool  Harbor  and 
Railway  Co.,(c)  the  company  agreed  to  sell  to  the  plaintiff 
a  plot  of  land  near  their  line,  and  the  contract  contained 
terms  as  to  the  company  laying  down  a  branch  railway,  and 
as  to  the  plaintiff  using  preferentially  the  defendants'  line 
of  railway.  Lord  Romilly,  M.  R.,  granted  specific  per- 
formance, and  his  decree  was  affirmed  by  the  judgment  of 
Turner,  L.  J. ,  who  held  that  the  parties  must  have  intended 
that  the  user  of  railway  which  was  necessarily  prospective 
should  be  secured  by  covenant.  Knight  Bruce,  L.  J.,  dis- 
sented. The  view  of  Turner,  L.  J.,  appears  consonant  to 
the  ordinary  course  of  business  and  in  furtherance  of  justice. 

(z)  Ogden  v.  Foasick,  4  De  G.  F.  &  J.,  4-26         (6)  Granville  v.  Bells,  18  L  J.  Ch.,  32. 
(o)  South  Wales  Railway  Co.  v  Wythes,  1        (c)  34  Beav.,  187;  2  De  G.  J.  &  S.,  475. 
K.  &  J.,  186;  S.  <  .,  5  De  G.  M.  &  G..  880. 


INCAPACITY  TO  PERFOKM  CONTRACT.        407 

§  819.  The  cases  on  marriage  contracts  strongly  illustrate 
tliH  principle  that  the  entire  contract  must  be  carried  into 
effect.  With  regard  to  these,  it  has  been  urged  that  as  the 
court  interfere  in  behalf  of  those  who  are  purchasers,  or 
considered  as  such  by  the  court,  but  declines  to  aid  volun- 
teers, so  when  the  court  specifically  executes  a  settlement, 
its  interference  should  be  confined  to  limitations  in  favor  of 
purchasers,  and  not  extended  to  volunteers.  The  court, 
however,  has  applied  the  princij^le,  that  the  whole  or  no 
part  of  the  contract  shall  be  executed,  to  marriage  contracts 
as  well  as  to  other  contracts.  "There  is  no  instance,"  said 
Lord  Hardwicke,((^?)  "of  decreeing  a  partial  performance  of 
articles — the  court  must  decree  all  or  none  ;  and  where  some 
parts  have  appeared  very  unreasonable,  the  courts  have  said 
we  will  not  do  that,  and,  therefore,  as  we  must  decree  all  or 
none,  the  bill  has  been  dismissed."  In  a  case  where  a  hus- 
band sued  the  heir  of  his  wife,  who  was  the  settlor,  on  a 
a  covenant  to  settle  land,  the  specific  jjerformance  was  not 
"restricted  to  his  estate,  but  carried  to  a  limitation  to  a  niece 
of  the  wife,  who  was,  of  course,  a  collateral,  (e) 

§  820.  The  cases  of  excei)tion,  or,  rather,  of  api^arent  ex- 
ception, to  the  principle  in  question  may  now  be  considered. 

§  821.  (1)  It  is  hardly  needful  to  repeat  that  the  princi- 
ple will  not  apply  to  contracts  which,  though  the}''  may  be 
entire  and  single  in  themselves,  contemplate  a  separate  and 
piecemeal  performance  of  separate  parts.  There,  in  the 
absence  of  other  objection,  the  court  will  carry  into  effect 
the  intention  of  the  parties  {/) 

§  822.  (2)  The  principle  in  question  is  strictly  applica- 
ble to  executory  contracts.  (^7)  It  does  not  apph',  in  terms, 
to  executed  contracts.  In  Rigby  v.  Great  Western  Rail- 
way Co.,(^)  the  company  had  demised  the  Swindon  refresh- 
ment rooms  to  the  plaintiffs  for  ninety-nine  years  ;  the  lease 
contained  various  covenants,  one  of  which  the  plaintiffs 
sought  to  enforce  by  injunction ;  an  objection  was  made 
that  the  lease  contained  other  covenants  which  the  court 
could  not  enforce  ;  and  Wigram,  V.  C,  made  these  observa- 
tion :{i)  "I  cannot  go  the  length  of  the  defendant's  propo- 

(d)  In  Goring  v.  Nash,  3  Atk  *  190.  (.a)  See  supra,  §  21. 

(«)   Davenport  v.  Bishopp,  2  Y.  &  C.  C.  C,  (h)  15  L.  J.  Ch.,'2t«5;  S.  C.,on  appeal, 2  Ph. 

451;  S.  C.,lPh.,693.  44. 

(/)  Wilkinson  v.  Clements,  L.  R.  8  Ch.,  96.  Ci)  15  L.  J.  Ch.,  iTl. 


408        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

sition,  that  tlie  plaintiffs  are  not  to  be  protected  by  injunc- 
tion, only  because  there  are  other  covenants  to  be  performed 
by  them  which  may  be  possibly  broken  hereafter.  It  would 
be  more  correct  to  say  that  where  the  mutual  rights  of  the 
parties  rest  in  covenant,  each  party  is  prima  facie  entitled 
to  enforce  his  right  in  equity  or  at  law,  according  to  the 
nature  of  the  covenant  which  may  be  broken.  I  cannot 
doubt  but  that  this  court  would,  at  the  suit  of  a  landlord, 
restrain  a  tenant  for  years,  under  a  husbandry  lease,  from 
ploughing  up  ancient  pasture,  where  he  had  bound  himself 
by  covenant  not  to  do  so  ;  and  it  would  be  no  answer  to  such 
a  bill  for  the  tenant  to  say,  that  the  landlord  was  under 
covenant  to  find  him  rough  timber  for  repairs,  which  cove- 
nant might  possibly  be  broken  by  the  landlord  before  the 
expiration  of  the  lease.  That  is  a  very  different  case  from 
that  of  Gervais  v.  Edwards.  (./)  On  the  other  hand,  I  am. 
not  prepared  to  go  the  length  of  the  plaintiff's  argument. 
It  would  not  be  difficult  to  suppose  a  case  in  which  great 
injustice  might  be  done  by  compelling  a  party  specifically 
to  perform  a  particular  covenant. ' ' 

§  823.  A  similar  view  was  enunciated  and  acted  upon  by 
Lord  Selborne  in  the  case  of  Wolverhampton  and  AValsall 
Railway  Co.  v.  London  and  North  Western  Railway  Co.,(/t) 
where  the  plaintiffs  sought  an  injunction  on  the  ground  of 
the  stipulations  contained  in  a  contract  between  the  com- 
panies sanctioned  by  act  of  Parliament.  It  was  argued  that 
the  contract  contained  terms,  such  as  those  providing  for 
the  proper  development  of  local  traffic,  which  the  court 
could  not  perform  :  but  the  argument  was  repelled  by  the 
lord  chancellor,  on  the  ground  of  the  distinction  between 
injunction  as  a  right  flowing  from  an  executed  contract  and 
the  specific  performance  of  executory  contracts. 

§  824.  A  familiar  illustration  of  this  difference  between 
executory  and  executed  contracts  occurs  in  the  case  of  x^art- 
nership  articles.  The  court  will  not,  generally  speaking, 
enforce  a  contract  to  enter  into  a  partnership  whilst  it  re- 
mains executory  :(^  but,  nevertheless,  when  the  partnership 
has  been  constituted,  the  court  will  by  injunction  enforce 
the  performance  of  particular  terms,  though  it  may  be  in- 

(j)  2  Dr.  &  War.,  80.  (jL)  Scott  v.  Rayment,  L.  B.  7  Eq.,  112.    See 

(t)  L.  R.  16  Eq.,  433.  infra,  §  1512. 


INCAPACITY  TO  PEEFOEM  CONTEACT.        409' 

competent  to  enforce  all  the  terms  :(m)  this  is  the  common 
course  of  practice  in  the  court. 

§  825.  Another  familiar  illustration  arises  on '  leases. 
The  court  will  restrain  the  breach  of  a  covenant  in  a  lease, 
though  it  may  contain  other  covenants  which  the  court 
could  not  j^ossibly  perform. 

§  826.  (2)  The  principle  in  question  is  not  to  be  extended 
to  all  cases  of  legal  or  even  equitable  relief  on  contracts, 
though  the  contracts  may  be  executory.  The  fact  that 
future  acts  may  have  to  be  done  under  a  contract  is  no  bar 
to  relief  grounded  on  a  right  perfect  in  itself,  and  resulting 
from  past  transactions  also  under  the  contract. 

§  827.  Thus,  where  in  a  contract  for  the  execution  of 
railway  works  the  contractors,  previously  to  their  comple- 
tion, tiled  a  bill  against  the  railway  company,  alleging  fraud 
in  the  engineer  in  withholding  certificates  of  work  done,  and 
asking,  amongst  other  things,  for  an  account  of  work  done  : 
it  was  held  on  demurrer,  that  though  the  works  were  not 
complete,  and  though  the  court  might  not  be  able  speciti- 
cally  to  perform  such  a  contract,  the  plaintiffs  had  a  right, 
perfect  in  itself,  of  wliich  they  had  been  deprived  by  the 
alleged  acts  of  the  defendants,  and  that  they  were,  there- 
fore, entitled  to  some  relief  in  equity. (7^.)  And  so,  it  seems, 
that  if  by  a  partnership  contract  it  were  stipulated  that  ac- 
counts should  be  made  up  half-yearly,  and  that  one  partner 
should  have  a  salary  proportionate  to  the  prolits  to  be  so 
ascertained,  he  miglit,  from  time  to  time,  institute  actions 
to  have  the  accounts  so  taken  according  to  the  contract, 
though  its  other  terms  might  not  be  the  subject  of  an  action 
for  specific  performance,  (o) 

§  828.  To  this  principle  we  may  probably  refer  the  case 
of  Lytton  v.  The  Great  Northern  Railway  Co.{p)  where, 
there  being  a  contract  by  the  company  to  make  and  main- 
tain a  siding  so  long  as  it  should  be  of  convenience,  the 
clause  as  to  maintaining  it  was  held  no  objection  to  a  bill 
for  the  specific  performance  of  the  contract  to  make  it,  the 
question  of  repairs  being  a  matter  for  inquiry  when  a  breach 
of  that  part  of  the  contract  should  occur. 

(m)  Kemble  V.  Kean,  6  Slni.,333.  (o)  Per  Wijtram,  V.  C,   In  the  last-cited 

(n)    Waring  v.  Manchester,  Sheffield  and    case,  7  Ha,  496. 
Lincolnshire  Railway  Co.,  7  Ha.,  482.  (p)  2  K.  &  J.,  394. 


410        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

§  820.  (4)  In  the  next  place,  it  must  be  observed  that 
where  the  contract  can  be  completely  performed  at  the 
.^ime,  though  there  may  be  future  acts  dependent  on  it,  the 
court  will  l)e  able  to  grant  si^ecific  performance;  as,  e.  //., 
a  contract  for  the  immediate  sale  of  timber  to  be  cut  down 
at  a  future  time,  or  at  intervals,  and  the  purchase  money 
for  it  to  be  paid  by  instalments.  (*7)  The  cases  already 
stated,  where  the  court  will  direct  the  execution  of  a  cove- 
nant to  do  future  acts,  illustrate  the  same  principle,  (r) 

§  830.  (5)  It  seems  very  questionable  whether  the  prin- 
ciple that  the  court  will  not  perform  part  of  a  contract  if  it 
cannot  perform  all,  ever  applied  to  cases  where  the  impossi- 
bility of  carrying  a  part  into  execution  was  due  to  the  de- 
fault of  the  defendant  who  set  up  this  defense.'  To  permit 
it  to  jDrevail,  would  be  counter  to  the  maxim  that  no  man 
shall  take  advantage  of  his  own  wrong.  In  the  case  of  the 
defendant  only  possessing  a  part  of  the  interest  which  he 
has  stipulated  to  sell,  the  defect  as  to  the  other  part  is,  as 
we  have  seen,  no  bar  to  specific  performance  at  the  suit  of 
the  purchaser.  (5)  In  one  case,  there  was  a  contract  between 
three  railway  companies  having  reference  to  a  purchase  and 
an  amalgamation :  for  the  purchase  no  further  parliamen- 
tary powers  were  needed,  but  for  the  amalgamation  they 
were,  and,  as  regards  one  of  the  companies,  they  could  not 

(q)  Per  Lord  St.  Leonards  in  Gervais  v.        (>•)  See  supra.  §§  816,  817. 
Edwards,  2  Dr.  &  War. ,  83.  (s)  Supra,  §  453 ,  and  see  infra,  §  1222  et  aeq. 

■  In  an  action  to  compel  specific  performance  for  tlie  convej^ance  of  land, 
the  defendant  showed  that  performance  was  impossible,  for  the  reason  that 
title  had  never  been  in  him.  The  case  was  referred  against  the  defendant's  ob- 
jection. Held,  that  the  matter  should  have  been  disposed  of  at  the  circuit ; 
that  defendant  had  a  right  to  have  his  damages  determined  by  a  jury,  and 
could  not  be  deprived  of  it.  Stevenson  v.  Baxter,  37  Barb.,  18.  Where  a  pur- 
chaser of  land  has  been  evicted  for  want  of  title,  there  l)eing  no  fraud  in  the 
transaction,  he  has  no  remedy  in  equity;  he  is  left  to  the  covenants  in  his  deed. 
]\Iiddlekauff  v.  Barrick,  4  Gill,  290.  The  holder  of  a  second  mortgage  agreed 
that  if  he  bought  in  his  own  name,  or  otherwise,  at  the  sale  under  the  fore- 
closure of  his  mortgage,  he  would  reduce  the  principal  sum  secured  by  the  first 
mortgage  by  paying  on  account  of  the  same  $3,000,  and  also  the  arrears  of 
interest:  the  holder  of  the  latter  agreed  to  waive  his  right  to  foreclose  for  the 
whole  principal  and  interest.  Held,  that  under  such  an  agreement,  the  plain- 
tiff could  not  recover  at  law  anything  beyond  nominal  damages  without  show- 
ing that  his  mortgage  had  been  foreclosed  for  the  whole  principal,  and  that  the 
mortgaged  premises  did  not  bring  suflBcient  to  pay  the  mortgage.  Livingston 
v.  Painter,  19  Abb.  Pr.,  28;  S.  C,  28  How.,  517;  S.  C,  43  Barb..  270.  In 
Greene  v.  Westche.shire  R.  R.  Co.,  L.  R.,  13  Eq.,  44,  it  was  held  that  specific 
performanfce  may  be  decreed  of  an  agreement,  notwithstanding  the  plaintiff 
-has  a  covenant  remedy  in  damages,  o"r  has  entered  into  a  negotiation  for  a 
money  consideration  which  has  failed. 


INCAPACITY  TO  PERFORM  CONTRACT.        411 

be  obtained,  because  a  majority  of  its  shareholders  were 
adverse  to  the  scheme :  in  a  suit  relating  to  the  purchase 
the  last-mentioned  compa'ny  set  up  as  a  defense  the  imi)os- 
sibility  of  carrying  into  effect  the  contract  as  to  the  amal- 
gamation ;  but  Lord  Cottenham  overruled  the  demurrer, 
and  doubted  whether  the  defendant  company  could  say  to 
the  plaintiffs  that  they  should  not  have  the  benefit  of  such 
part  of  the  contract  as  the  defendants  could  perform,  be- 
cause tliey  could  not,  without  an  act  of  Parliament,  perform 
the  whole,  and  they  declined  applying  to  Parliament  to  give 
them  the  necessary  X30wers.(^) 

§  831.  But  whatever  difficulties  may  have  previously  ex- 
isted on  this  point,  seem  now  to  be  removed  by  Lord  Cairns' 
act  (21  and  22  Yict.,  c.  27),  and  it  may,  it  is  conceived,  be 
laid  down,  that  wherever  the  thing  which  the  court  cannot 
enforce  is  a  condition  inserted  for  the  plaintiff's  benefit  in 
respect  of  which  the  defendant  is  in  default,  and  where  the 
court  Avould,  before  the  XJ^ssiug  of  the  act,  have  had  juris- 
diction to  enforce  the  contract  on  the  jjlaintiff's  waiver  of 
tlie  condition  for  his  benefit,  there  the  court  can  now  grant 
specific  performance  of  the  contract  so  far  as  it  is  enforcea- 
ble specifically,  and  direct  the  defendant  to  pay  damages 
for  his  non-performance  of  the  condition  which  the  court 
cannot,  specifically  enforce.  Thus,  in  Soames  v.  Edge,(?/.) 
the  plaintiff  had  agreed  to  grant  a  lease  to  the  defendant  so 
soon  as  he  should  have  built  a  new  house  on  the  land  ;  and 
the  defendant  agreed  to  accept  the  lease  when  required  and 
to  build  the  new  house  :  the  i)laintiff  filed  his  bill  praying 
specific  performance  of  the  contract  to  build  and  take  the 
lease,  also  for  damages,  either  in  addition  to  or  substitution 
for  such  relief :  on  demurrer  the  defendant  urged  that  the 
court  could  not  execute  the  contract  to  build  ;  that  the  lease 
was  dependent  on  the  house  being  built ;  that  the  plaintiff 
had  not  waived  the  condition,  and,  consequently,  that  Lord 
Cairns'  act  did  not  apply :  this  argument -was  repelled  by 
Lord  Hatherley  (then  a  vice-chancellor),  who  overruled  the 
demnrrer,  and  held  that,  on  the  lolain tiff's  waiver  of  the  con- 
dition, he  should  have  had  jurisdiction  before  the  act,  and 

(t)  Great  Western  Railway  Co.  v.  Birming-  Ph.,  597,  605.  See,  also,  Norris  v.  Jackson,  1 
ham  and  Oxford  Junction  Railway  Co.,  2    J.  &  H,  319,  particularly  328. 

(M)  Johns.,  669.  "^ 


412        FRY  OX  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

that,  therefore,  since  the  act  he  could  give  relief  as  to  part 
by  way  of  specific  performance,  and  as  to  the  rest  by  way 
of  damages. 

§  833.  The  limits  of  this  principle  are  well  illustrated  by 
a  case  of  Norris  v.  Jackson, (?))  which  shortly  followed  the 
case  just  referred  to.  In  that  case  Cook,  through  whom  the 
defendant  claimed,  in  1850  agreed  with  the  jilaintiff  to  grant 
him  a  lease  of  a  certain  house  and  farm,  and  on  or  before 
the  11th  of  October,  1852,  to  put  the  house  into  sufficient 
repair  and  to  erect  suitable  coach-houses,  etc.,  as  Norris 
and  Cook  should  jointly  agree  upon,  to  the  intent  that  the 
house  and  premises  should  be  made  fit  for  the  occupation 
of  Norris  and  his  family  :  and  Norris  agreed  that  upon  due 
performance  by  Cook  of  the  foregoing  stipulations  he  would 
accept  the  lease.  These  repairs  were  never  done :  but  there 
was  no  allegation  in  the  bill  that  Cook  had  evaded  giving 
his  consent  to  any  arrangements  :  and  the  plaintiff  did  not 
waive  but  insisted  on  his  right  to  have  such  repairs  done, 
as  the  court  should  think  proper  to  fit  the  house  for  the 
occupation  of  himself  and  his  family.  The  court  held  that 
this  was  beyond  its  powers :  that  there  was  no  contract 
which  could  be  performed  with  respect  to  repairs,  nor  any 
contract  binding  the  plaintiff  to  take  a  lease  till  the  repairs- 
had  been  done.  The  bill  was  consequently  dismissed  on 
demurrer. 

§  833.  (6)  It  was  formerly  laid  down  that  where  the 
positive  part  of  an  executory  contract  could  not  be  per- 
formed by  the  court,  it  would  not  enforce  the  negative  by 
injunction :  so  that,  for  example,  where  an  actor  had  agreed 
to  act  at  a  certain  theatre,  that  being  a  contract  which  the 
court  could  not  enforce,  it  refused  to  restrain  him  by  injunc- 
tion from  acting  elsewhere :(?«)  and  where  there  was  a  con- 
tract for  hiring  and  exclusive  service  during  seven  years, 
and  for  partnership  at  the  end  of  that  time  on  such  terms  as- 
should  be  mutually  agreed  on  ;  the  contract  being  one  which 
the  court  could  not  perform  as  a  whole,  it  refused  to  enforce 
by  injunction  the  covenant  for  exclusive  service. (re)  Again, 
where  the  defendants  had  agreed  to  furnisli  the  plaintiffs 
with  the  drawings  for  maps  which  the  plaintiffs  were  exclu- 

(t)  IJ  &  11.,  319.    See,  too.  3  Giff.,  396.  («)  Kimberley  t.  Jennings,  6  Sim.,  340. 

(w)  Kemble  v.  Kean,  6  Sim.,  333. 


IISrCAPACITY   TO   PEEFORM   CONTRACT.  413 

sively  to  sell ;  the  court  being  unable  to  compel  the  defend- 
ants to  furnish  these  drawings,  refused  an  injunction  to 
restrain  the  defendants  from  themselves  selling  the  maps.(?/) 

§  834.  This  question  was  very  much  discussed  in  the 
case  of  Lumley  v.  Wagner, (2:)  where,  there  being  an  execu- 
tory contract  in  part  positive  and  in  part  negative,  and  the 
positive  part  being  such  as  the  court  was  unable  to  enforce 
specifically,  it  yet  interfered  in  respect  of  the  negative  part 
by  means  of  injunction.  In  that  case,  the  defendant  entered 
into  a  contract  with  the  jDlaintiff  to  sing  at  his  theatre,  and 
not  to  sing  at  any  other  ;  and  Lord  St.  Leonards  granted  an 
injunction  restraining  the  defendant  from  singing  at  any 
other  theatre  than  the  plaintiff's,  thougli  the  specific  per- 
formance of  the  positive  part  would  have  been  certainly 
beyond  the  court's  power.  The  pirinciple  was  acted  on  in 
some  earlier  cases  ;((z)  but  in  the  case  just  cited  all  the 
authorities  on  the  subject  were  quoted.' 

§  835.  It  has  been  thought  to  follow  from  the  language 
of  some  parts  of  the  judgment  in  Lumley  v.  Wagner(&)  that 
the  pirinciple  of  that  case  is  not  confined  to  cases  where  the 
negative  stipulation  is  express,  but  applies  also  to  others 
where  the  negation  is  implied.     Accordingly,  in  one  case 

iy)  Baldwin  V.  Society  for  Difl'using  Useful  (a)  Dietrichaen  v.  Cabl)urn,2  Pli  ,5-2;  Great 

Knowledge,  9  Sim.,  393;  Clarke  v.  Price,  2  J.  Norrhern  Railwa}'  Co.  v.  Manchester,  Shef- 

\Vil8.,  157.  field  and  Lincolnshire  llailwav  Co.,  ^  De  (j. 

(2)  1  De  G.  M.  &  G.,  604.    See,  too,  Catt  v.  &  Sm  ,  138     See,  also.  Hills  v.  Croll,  1  De  G. 

Tourle,  L.  R.  4  Ch.,654  u^'here  the  court  con-  M.  &  G.,  627  n.;  S.  C,  2  Ph.,  60;  Daggett  v. 

sidered  that  the  covenant  in  question,  though  Rynian,  16  W.  K.,  302. 

intermspositive,  was  in  substance  negative).  (b)  1  De  G.  M.  &  G  ,  604. 

'  It  does  not  appear,  however,  that  the  doctrine  of  Lumley  v.  Wagner  has 
been  received  in  this  country.  Cases  of  this  nature  relate  to  personal  acts,  and, 
although  there  may  be  cases  in  which  damages  are  an  inadequate  relief,  and  a 
specific  performance  will  alone  answer  the  complete  ends  of  justice,  yet  equity 
will  only  interfere  where  the  question  has  reference  to  property  of  some  kind. 
There  are  "numerous  cases  arising  between  landlord  and  tenant,  and  in  cases 
of  partnership,  where  personal  covenants  will  be  decreed  to  be  enforced.  They 
generalh''  rest  upon  the  reasons  already  stated,  the  inadequacy  of  the  remedy 
at  law,  and  the  difficulty  of  ascertaing  the  damages.  Thus,  a  covenant  to  give 
a  lease,  or  to  renew  a  lease,  has  been  required  to  be  executed,  and  to  contain 
also  a  covenant  for  further  renewal.  So  an  agreement  to  form  a  partnership 
and  execute  articles  accordingly,  may  be  specifically  enforced."  Willard's  Eq. 
Jur. ,  277.  It  was  upon  the  ground  of  pdrtnership  that  the  doctrine  of  Morris 
V.  Coleman,  1 8  Ves. ,  487,  was  received  into  this  country.  But  it  is  expressly 
decided,  that  ' '  where  there  is  no  partnership  between  the  parties,  and  the  de- 
fendant has  violated  his  engagement  to  one  theatre  and  formed  a  conflicting 
.  engagement  with  another,  a  court  of  equity  will  not  interfere  either  actively  or 
negatively  to  prevent  the  performance  of  the  other."  Willard's  Eq.  Jur.,  277. 
And  it  is  continued  by  the  same  author,  "that  the  court  possessing  no  means 
to  enforce  the  contract,  the  parties  will  be  left  to  their  remedy  at  law."  See 
De  Rivafinola  v.  Kean,  4  Paige,  264,  and  ante,  note  (2),  chap  4,  pt.  'd. 


414        FliY  ON  SPKCIFIC  PERFORMANCE  OF  CONTRACTS. 

where  an  actor  liad  entered  into  a  contract  to  perform  on 
certain  niglits  at  Sadler's  Wells  Theatre,  but  without  any 
stii)iil:ition  tliat  he  would  not  perform  elsewhere,  Lord 
Hatherl«-y  (then  Wood,  V,  C.)  restrained  him  from  acting 
at  any  other  i)hice  than  the  plaintiff's  theatre  on  the  nights 
on  whicli  he  had  agreed  to  act  there,  (c)  In  Fechter  v,  Mont- 
gomery, (<^7)  Lord  Romilly,  M.  R,,  though  refusing  an  in- 
junction on  other  grounds,  does  not  seem  to  have  doubted 
the  jurisdiction  in  a  like  case  :  and  in  Montague  v.  Flock- 
ton,  (c^)  Malins,  V.  C,  granted  an  injunction  on  a  similar 
contract  by  an  actor  after  a  full  discussion  and  considera- 
tion of  the  authorities. 

§  830.  Another  class  of  cases  in  whicli  the  courts  have 
imjDlied  a  negative  are  suits  on  charter-iDarties  De  Mattos 
V.  (Tibson(/')  was  the  first  case  where  this  question  arose. 
There  the  defendant  Curry  being  about  to  purchase  a  ship 
contracted  by  charter-party  with  the  plaintiff  to  carry  for 
him  a  cargo  of  coals  from  Newcastle  to  Suez.  Curry  then 
bought  the  ship  and  mortgaged  it  to  Gribson  with  notice  of 
the  charter-party.  The  bill  was  filed  to  restrain  Gibson 
from  interfering  with  the  voyage  contracted  for :  Curry  was 
afterwards  added  as  a  defendant,  and  the  plaintiff  moved 
for  an  injunction  before  Lord  Hatherley  (then  Wood,  V.  C), 
who  refused  the  motion  on  the  ground  that  the  case  was 
not  within  the  i)rincix)le  of  Lumley  v.  Wagner,  (17)  and  that 
the  whole  matter  sounded  in  damages.  The  lord  justices 
on  appeal  granted  an  injunction.  Knight  Bruce,  L.  J.,  hold- 
ing it  to  be  the  duty  and  witliin  the  power  of  the  court  to 
prevent  the  commission  or  continuance  of  the  breach  of 
such  a  contract,  when,  its  subject  being  valuable,  as,  for 
instance,  a  trading  sliix)  or  some  costh^  machine,  the  origi- 
nal owner  and  possessor,  or  a  person  claiming  under  him 
with  notice,  having  the  physical  -  control  of  the  chattel,  is 
diverting  it  from  the  agreed  object,  that  object  being  of  im- 
portance to  the  others.  Turner,  L.  J.,  put  his  judgment 
upon  the  fitness  of  retaining  matters  as  they  were  until  at 
the  hearing  the  important  questions  in  the  suit  should  be 

<c)  Webster  V.  Dillon,  3  Jur.  (N.  S.),  432;  5  (/)  4  De  G.  &  .1.,  27G,  where  the  case  can  be 

W.  H.,g6r.  traced  througli  its  stages  up  to  the  appeal 

(rf)  33  LJeav  ,  22     Si^e,  too,  Leavitt  v  AVil-  from  the  hearing  of  the  cause, 

llaras  (Jesse!,  M.  R.),  24  Sol.  Jouru.,  706.  ig)  1  De  G.  M.  &  G.,  61)4. 

(e)  L.  R.  16  Eq.,  189. 


INCAPACITY   TO    PERFOIiM    CO>TKACT.  415 

decided.  The  cause  then  came  before  Lord  Hatheiiey  (then 
Wood,  V.  C),  at  the  hearing,  who,  after  a  full  argument, 
dismissed  the  bill :  and  his  decision  was  brought  by  appeal 
before  Lord  Chelmsford,  who  held  that  a  vessel  under  char- 
ter "ought  to  be  regarded  as  a  chattel  of  peculiar  value  to 
the  charterer,  and  that  although  a  court  of  equity  cannot 
comj)el  a  specific  performance  of  the  contract  which  it  con- 
tains, yet  that  it  will  restrain  the  employment  of  the  vessel 
in  a  different  manner,  whether  sucli  employment  is  ex- 
pressly or  impliedly  forbidden,  according  to  the  X)i"iii<^'ipl© 
so  fully  expressed  in  the  case  of  Lumley  v.  Wagner."  But 
he  affirmed  the  dismissal  of  the  bill  on  the  ground  that 
neither  of  the  defendjwits  had  done  anything  to  liinder  the 
voyage. 

§  837.  The  case  of  Sevin  v.  Deslandes,(7^)  before  Lord 
Romilly,  M.  R.,  followed  De  Mattos  v.  Gibson, (/)  and  there 
an  injunction  was  granted,  both  on  interlocutory  motion 
and  at  the  hearing,  to  restrain  the  defendant  from  doing 
any  act  inconsistent  with  the  charter-party,  which  did  not 
contain  any  express  negative  clauses. 

§  838.  It  is  not  easy  to  see  the  limits  to  which  the  doc- 
trine of  an  implied  negative  might  be  carried  :  for  as  A.  and 
not  A.  include  the  whole  world,  it  follows  that  a  contract 
to  sell  to  A.  or  to  sing  at  A.  must  imi:)ly  a  negation  of  a  sale 
to  not-A.  or  a  singing  at  not-A:  and  if  injunction  is  to  be 
granted  where  specific  pei'formance  niiglit  be  impossible, 
the  logical  conclusion  of  the  doctrine  would  be  a  great  and 
rather  formidable  enlargement  of  the  jurisdiction  of  equity. 
Such  an  enlargement  of  the  doctrine  would  be  contrary  to 
a  dictum  of  Lord  Cottenham,  couched  in  the  form  of  a 
question,  in  Heathcote  v.  The  North  Staffordshire  Railway 
Co.,(^")  where  he  asked:  "If  A.  contract  with  B.  to  deliver 
goods  at  a  certain  time  and  place,  will  equity  interfere  to 
prevent  A.  from  doing  anything  which  may  or  can  prevent 
him  from  so  delivering  the  goods  V 

§  839.  In  De  Mattos  v.  Gibson,  Lord  Ilatherley  (then 
V.  C),  thought  the  implication  of  a  negative  stiijulation 
was  to  be  confined  to  cases  in  which  "  the  breach  of  a  posi- 
tive agreement  involves  specific  damage  beyond  that  of  the 

(h)  SOL.  J.Ch.,457;  9  W.  R.,218.JSee,too,        (0  4  De  G.  &  J.,  276. 
Le  Blanch  v.  Granger,  35  Beav.,  187.  U)  2  Mac.  &  G.,  112. 


416        FRY  OX  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

mere  non-perforniance  of  the  agreement  itself  "—tlie  special 
damage  (in  Miss  Wagner's  case)  resulting  from  her  singing 
elsewhere  at  a  rival  theatre,  ultra  the  non-performance  of 
her  contract  to  sing  at  the  plaintiff's  theatre  :  and  in  another 
case,  the  same  learned  judge  observed  that  the  instances  in 
which  the  court  had  found  it  possible  to  infer  the  negation 
were  very  few  and  special,  (A*) 

§  840.  In  Fothergill  v.  Rowdand,(^)  Jessel,  M.  R.,  had 
before  him  a  bill,  based  on  a  contract  for  the  sale  of  all  the 
coal  from  a  particular  colliery  for  a  certain  period,  which 
prayed  for  an  injunction  against  selling  the  colliery,  except 
subject  to  the  contract,  and  against  disposing  of  the  coal 
except  for  the  purpose  of  the  performance  of  the  contract. 
His  lordship  observed  that  he  could  not  find  or  seize  any 
distinct  line  dividing  the  two  classes  of  cases,  that  is,  the 
class  in  v/hich  the  court  not  being  able  to  grant  specific  per- 
formance grants  an  injunction,  and  the  class  in  which  it 
does  not  grant  the  injunction :  and  he,  therefore,  following 
the  dictum  of  Lord  Cottenham,  allowed  a  demurrer. 

§  841.  The  doctrine  in  Lumley  v.  Wagner(??i,)  has  been 
criticised  by  Lord  Selborne  :  and  after  his  observations  it  is 
doubtful  whether  the  mere  presence  of  a  negative  stipula- 
tion can  be  relied  on,  if  the  contract  is  not  such  in  its  nature 
as  to  be  the  proper  subject  of  equitable  jurisdiction.  "It 
was  sought  in  that  case, ' '  said  his  lordship,  iii) ' '  to  enlarge  the 
jurisdiction  on  a  highly  artificial  and  technical  ground,  and 
to  extend  it  to  an  ordinary  case  of  hiring  and  service,  wiiich 
is  not  projoerly  a  case  of  specific  i^erformance :  the  techni- 
cal distinction  being  made,'  that  if  you  find  the  word  '  not ' 
in  an  agreement — 'I  will  not  do  a  thing' — as  well  as  the 
w^ords  'I  will,'  even  although  the  negative  term  might  have 
been  implied  from  the  positive,  yet  the  court,  refusing  to 
act  on  an  imj)lication  of  the  negative,  will  act  on  the  ex- 
pression of  it.  I  can  only  say,  that  I  should  think  it  was 
the  safer  and  the  better  rule,  if  it  should  eventually  be 
adopted  by  this  court,  to  look  in  all  such  cases  to  the  sub- 
stance and  not  to  the  form.  If  the  substance  of  the  agree- 
ment is  such  that  it  would  be  violated  by  doing  the  thing 

(fc)  Peto  V.   Rrighton,  Uckfleld  and  Tan-  (m)  1  De  G.  M.  &  G.,  604. 

bridge  >v'cll3  Kuilway  Co  ,  1  tl.  &  M.,  468,486.  \>i)  In  ^Volverharapton  and  Walsall  Rall- 

(?)  L.  U.  17  K(j.,  132.    Distinguish  Jones  v.  way  Co.  v.  Loudon  and  North  Western  Rail- 

Korth,  L.  K.  19  Eq.,  426.  way  Co.,  L.  R.  16  Eq.,  440. 


INCAPACITY  TO  PERFORM  CONTRACT.        417 

sought  to  be  prevented,  then  the  question  will  arise,  whether 
this  is  the  court  to  come  to  for  a  remedy.  If  it  is,  I  cannot 
think  that  ought  to  depend  on  the  use  of  a  negative  rather 
than  an  affirmative  form  of  expression.  If,  on  the  other 
hand,  the  substance  of  the  thing  is  such  that  the  remedy- 
ought  to  be  sought  elsewhere,  then  I  do  not  think  that  the 
forum  ought  to  be  changed  by  the  use  of  a  negative  rather 
than  an  affirmative." 

§  842.  The  view  thus  plainly  expressed  by  Lord  Selborne 
had  been  indicated  in  an  earlier  case  before  Lord  Hatherley, 
when  vice-chancellor.  The  object  of  the  bill,  in  that  case, 
was  to  enforce  the  si:>ecific  performance  of  a  contract  to  em- 
ploy the  plaintiff  as  a  broker,  which  contained  a  stipula- 
tion that  the  i^laintiff's  name  should  appear  in  all  advertise- 
ments of  the  company.  To  it  the  defendant's  demurred, 
and  the  only  point  on  which  the  judge  entertained  any 
serious  question  was  whether  -the  stipulation  as  to  adver- 
tisements did  not  bring  the  case  within  the  principle  of 
Lumley  v.  Wagner  ;(o)  but  he  determined  that  it  did  not, 
and  that  as  the  defendants  did  not  employ  the  plaintiff  as 
broker,  the  court  could  not  restrain  their  issue  of  advertise- 
ments omitting  his  name.(^) 

§  843.  The  position  of  that  branch  of  the  law  on  which 
Lumley  v.  Wagner  is  the  leading  authority  can  hardly  be 
said  to  be  very  satisfactory.  It  may,  it  is  conceived,  be  con- 
cluded that  the  principle  of  this  case  will  not  be  extended  ; 
that  negative  stipulations  will  not  be  implied  except  in  the 
cases  where  the  courts  have  already  done  so  ;  and  that  even 
the  presence  of  an  express  negative  stipulation  will  not  be 
found  a  sufficient  ground  for  jurisdiction  unless  the  con- 
tract is  of  a  kind  of  which  specific  performance  can  be 
granted.  In  other  words,  it  is  probable  that  the  court  will 
hereafter,  except  so  far  as  it  may  be  bound  by  existing  au- 
thorities, consider  whether  the  contract  in  respect  of  which 
the  injunction  is  sought  is  or  is  not  of  a  kind  fit  for  specific 
performance ;  that,  if  it  be,  the  court  will  tend  to  restrain 
acts  inconsistent  with  it,  whether  there  be  negative  words 
or  not ;  that  if  it  be  not  of  a  kind  fit  for  specific  perform- 

(0)  IDeG  M   &  G..604  (P)  Brett  v.  East  India  and  London  Shlp- 

ping  Co.,  Limited,  3  H.  &  M.,  404. 

27 


418        YllY  ON  SrECIFIC  PERFORMANCE  OF  CONTRACTS. 

ance,  no  injunction  will  be  granted,  even  though  negative 
words  may  be  present. 

§  844.  In  cases  where  the  contract  on  which  an  injunc- 
tion is  sought  contains  stipulations,  soiye  of  which  the  court 
can,  and  others  which  it  cannot  enforce,  and  the  latter  are 
wholly  on  the  plaintiff's  part,  no  difficulty  arises  ;  because, 
though  the  court  may  be  unable  to  enforce  them  directly, 
it  does  so  indiiiectly,  inasmuch  as  the  moment  the  plaintiff 
fails  in  performing  his  part  of  the  contract,  the  injunction 
would  be  dissolved.  (§') 

§  845.  (7)  Where  an  arrangement  come  to  between  two 
persons  is  intended  to  be  of  a  complex  character,  partly 
legal  and  partly  honorary,  the  court  will,  if  there  be  no 
other  impediment,  specifically  perform  the  legal  contract, 
leaving  the  honorary  part  of  the  arrangement  to  rest,  as  was 
intended,  on  the  honor  of  the  parties.  So  that,  wdiere  this 
latter  part  is  malum  pro7iiMtu7n  and  not  malum  in  se,  it 
will  not  obstruct  the  court  in  its  execution  of  the  other  part 
of  the  arrangement  which  amounted  to  contract.  (7*) 

§  84tt.  (7)  Where  the  contract  is  in  any  manner  alterna- 
tive) so  that  the  parts  of  it  are  mutually  exclusive  one  of 
the  other,  and  the  plaintiff  has  a  right  to  ask  for  the  per- 
formance of  one  part,  the  court  may  treat  this  as  inde- 
pendent of  the  other :  thus,  in  a  contract  to  grant  a  lease 
with  an  oiDtion  to  the  lessee  to  purchase  this  option  was 
held  so  far  independent  of  the  contract  for  a  lease,  that  a 
default  on  the  part  of  the  plaintiff  in  insuring,  which  would 
have  prevented  his  suing  for  a  lease,  did  not  prevent  his 
suing  on  the  option  to  purchase.  (5) 

§  847.  (9)  In  one  case  Lord  Romilly,  M.  R.,  appears  to 
have  expressed  the  opinion,  that  where  a  part  of  the  con- 
tract which  the  court  could  not  perform  has  been  actually 
performed  before  suit,  the  incapacity  of  the  court  as  to  this 
part  would  furnish  no  defense  as  to  the  other  part.  But 
the  doctrine  appears  to  have  been  rejected  by  the  court  of 
appeal.  (^)* 

(n)  Stocker  v.  Wedderburn,  3  K.  &  J.,  393,  (s)  Green  v.  Low,  22  Beav.,  625. 

405  (t,  Hope  V.  Hope,  22  Beav., 351;  S.  C.,8De 

(r)  Cardan  v.  Brabazon,  2  Jon.  &  L.,  200,  G.  M.  &  G.,  731,  746.    See,  also,  Walrond  v. 

213.  Walrond,  John.,  18. 


1  27ie  court  must  he  able  to  enforce  the  contract  as  to  all  the  parties  to  it.']     "There 
is  no  instance  of  decreeing  a  partial  performance  of  articles.     The  court  must 


INCAPACITY  TO  PERFOKM  CONTRACT.        41(J 

decree  all  or  none.  And  where  some  parts  have  appeared  verj-  unheasonable 
the  courts  have  said,  we  will  not  do  that;  and,  therefore,  as  we  must  decree  all 
or  none,  the  bill  has  been  dismissed."  Lord  Ilardwick  in  Goring  v  Nash  3 
Atk.,  190;  Davenport  r.  Bishop,  2  Y.  &  C.  C.  C,  451:  S.  C,  1  Phi].,  fl'js.    ' 

yatiire  of  the  contract,  lohether  divisible  ornot.^  This  is  to  be  determined  from 
the  nature  and  subject  of  agreement.  Moore  v.  Bonnet,  40  Cal.,  251;  Hacv  v. 
Grinnel,  50  111.,  179  ;  Southwell  v.  Beezley,  5  Oregon,  458.  An  agreement  to' sell 
real  estate  in  one  lot  is  not  divisible.  Ralley  v.  Shatcross,  2Bro.  C.  C  .  1 18(n  )• 
S.  C. ,  4  Mad. ,  227 ;  Price  v.  Griffith,  1  De  G  M.  &  G. ,  80.  A  contract  to  grade  a 
railroad  for  a  specilic  sum,  to  be  paid  as  the  work  progresses,  is  entire  Cox  v. 
■West.  Pac.  R.  It.  Co.,  44  Cal.,  18;  see,  also,  C<>l)urn  v.  City  of  Hartford,  38  Coim.' 
290.  A  lot  of  coal  was  contracted  for  at  a  given  price  per  ton  on  board  vessels! 
Held,  that  none  of  the  coal  should  be  paid  for  until  the  delivery  was  complete! 
Shrim  v.  Bodine,  60  Pa.  St.,  182.  Different  prices  may  be  paid  for  different 
articles,  and  yet  the  contract  be  entire.  Parker  v.  Bergen,  4  Heisk.,  590.  Lord 
Alvanley,  Ch.  J.,  said  in  Johnson  v.  Johnson,  8  Bos.  ct  Pull.,  102:  "If  the 
question  were  how  far  the  particular  part  of  which  the  title  has  failed  formed 
an  essential  ingredient  of  the  bargain,  the  grossest  injustice  would  ensue  if  a 
party  were  suffered  in  a  court  of  hiw  to  say  that  he  would  retain  all  of  which 
the  title  was  good,  and  recover  a  proportionable  part  of  the  purchase  money 
for  the  rest.  Possibly  the  part  which  he  retains  might  not  have  been  sold 
unless  the  other  part  had  been  taken  at  the  same  time,  and  ought  not  to  be 
valued  in  proportion  to  its  extent,  but  according  to  the  various  circumstances 
connected  with  it.  But  a  court  of  equity  may  inquire  into  all  the  circum- 
stances, and  may  ascertain  how  far  one  part  of  the  bargain  formed  a  material 
ground  for  the  rest,  and  may  award  a  compensation  according  to  the  real  state 
of  the  transaction.  In  this  case,  however,  no  such  question  arises;  for  it  ap- 
pears to  me  that,  although  both  pieces  of  ground  were  bargained  for  at  the 
same  time,  we  must  consider  the  bargain  as  consisting  of  two  distinct  contracts, 
and  that  one  part  was  sold  for  £300  and  the  other  for  £700. "  It  has  not  beea 
suggested  that  they  were  necessary  to  the  occupation  of  each  other." 

Example  of  dicisihle  contracts.'^  Shaw,  C.  J.,  said  in  Robinson  v.  Green  3 
Mete,  159:  "The  plaintiff  does  not  claim  on  an  entire  contract.  The  sale  of 
each  lot  is  a  distinct  contract.  The  plaintiff's  claim  for  a  compensation  arises 
upon  each  several  sale,  and  is  complete  on  such  sale.  If  there  were  an  express 
promise  to  pay  him  a  fixed  sum  as  a  compensation  for  the  entire  sale,  it  would 
have  presented  a  different  question.  Wliere  an  entire  promise  is  made  on  one 
entire  consideration,  and  part  of  that  consideration  is  illegal,  it  may  avoid  the 
entire  contract.  But  here  is  no  evidence  of  a  promise  of  one  entire  sum  for 
the  whole  service.  It  is  the  ordinary  case  of  an  auctioneer's  commission  which 
accrues  upon  each  entire  and  complete  sale.  We  do  not  see  how  the  question 
can  be  answered  which  was  put  in  the  argument,  namely;  suppose  the  plaintiff 
had  stopped,  after  selling  the  two  lots  lying  in  South  Reading,  which  it  was 
lawful  for  him  to  sell,  would  he  not  have  been  entitled  to  his  commission  ?  If 
he  would,  we  do  not  perceive  how  his  claim  can  be  avoided  by  showini;  that  he 
did  something  else  on  the  same  day  which  was  not  malum,  in  'se,  but  an  act  pro- 
hibited by  law  on  considerations  of  public  policy.  The  court  are  of  opinion 
that  the  plaintiff's  claim  for  a  quantum  meruit  may  be  apportioned,  and  that  he 
is  entitled  to  recover  for  his  services  in  the  sale  of  the  two  lots."  The  matter 
is  very  fully  discu.ssed  in  McDauiel's  v.  "Whitney,  38  Iowa,  (50.  On  the  follow- 
ing questions  the  court  were  equally  divided:  "  Proposition  made  by  me  to  Mr. 
McDauiels — I  lierebj'  agree  to  give  up  the  banking  business  in  Atlantic  to  3Ir. 
McDauiels,  and  the  best  lot  he  can  pick  out  in  our  town,  provided  he  will  now 
build  upon  the  same,  and  become  a  permanent  resident  in  our  count}',  and  take 
$16.50  per  acre  for  the  farm  of  375  acres  in  sections  33,  34  and  38  of  township 
77 — 36  as  marked  blue  on  his  plat — and  give  up  to  said  3Icl)aniels  ni}-  chance 
of  purchasing  the  tw'O  40-acre  lots  of  which  Judge  Temple  is  acting  as  a"-ent. 
This  propo.silion  is  not  a  standing  one,  but  to  be  decided  witiiin  two'davs  from 
date."  Beck,  C.  J.,  and  Day,  J,,  held  that  there  were  two  distinct  contracts,  and 
that  one  of  them  might  be  specifically  enforced  without  the  other.  Miller,  J. 
and  Cole  J.,  held  that  there  was  one  entire  contract.  Cole,  J.,  said:  "The 
proposition,  while  single  in  itself,  yet  contains  an  agreement  on  the  part  of 


420        FRY  ON  SPECIFIC  PEUFORMAXCE  OF  CONTRACTS. 

Whituey  to  do  four  thiiiirs,  each  of  which  is  separated  from  the  preceding  only 
by  a  comma,  and  is  coniie(;ted  with  tlie  i^receding-  by  the.  copulative  conjunc- 
tion and.  Mr.  Wliitney.  hv  his  proposition,  says:  I  hereby  agree  to  give^up 
the  hanking  business  in" Atlanta  to  ]\Ir  McDaniels.  and  the  best  lot  he  can  pick 
out  in  our  Town,  and  take  $1(5.50  per  acre  for  the  farm  of  375  acres,  and  give 
up  to  said  McDaniels  my  chance  of  purchasing  the  two  40-acre  lots.  There  is 
no  division  of  this  proposition  into  sentences,  nor  any  specification  of  the  con- 
sideration the  proposer  is  to  receive  for  each  of  the  four  things  he  proposes  to 
do.  The  price  per  acre  for  the  land  is  specified.  But  whether  such  price  is 
above  or  below  its  real  or  market  value  does  not  appear,  either  in  tlie  proposi- 
tion itself,  or  in  the  evidence  in  the  case.  It  may  have  been  much  above  its 
value,  and,  in  the  contemplation  of  the  parties,  ecjualized  by  the  chance  of 
getting  the  two  40-acre  tracts.  Or,  it  may  have  been  much  below  its  value, 
and,  in  the  estimation  of  the  parties,  compensated  for  by  taking  the  banking 
business  with  its  burdens  of  doubtful  securities.  At  all  events,  there  is  nothing 
in  the  proposition  itself,  which  specifies  the  consideration  to  be  paid  to  the  pro- 
poser for  each  of  the  four  things  he  agrees  to  do,  nor  for  any  one  of  them. 
The  proposition  further  shows  that  it  was  not  binding  at  once,  and,  in  any 
event,  upon  the  proposer  Whitney.  But  it  was  to  be,  and  would  become,  bind- 
ing upon  him  only  when  it  should  be  accepted  by  McDaniels.  What  was 
:McDaniels  to  do  in  order  to  accept  it,  and  make  it  binding  upon  Whitney  ? 
lie  was  to  pick  the  best  lot,  and  to  build  upon  it.  and  take  the  banking  busi- 
ness, and  become  a  permanent  resident  of  the  county,  and  pay  $16.50  per  acre 
for  the  farm,  and  take  the  chance  of  purchasing  the  two  40-acre  lots.  He  was 
to  do  all  of  these  things  before  Whituey  would  become  bound  to  him  to  do 
what  he  had  proposed.  McDaniels  could  not  elect  to  take  the  banking  busi- 
ness alone,  and  require  Whitney  to  give  it  up.  This  is  too  clear  to  require 
demonstration,  and,  if  he  coul^  not  do  this,  it  is  just  as  clear  that  he  could 
not  require  Whitney  to  do  any  other  one  of  the  several  things  pi'oposed,  without 
bimself  doing  all  that  he  was  required  to  do  by  the  proposition,  and  from  this 
it  must  appear  that  the  contract  is  no  more  divisible  into  two  parts  than  into 
four." 


DKFECT   IN    SUBJECT    MATTER   OF    CONTKACT.  421 


CHAPTER  XVII. 

OF   DEFLECT   IX   THE   SUBJECT   MATTER   OF   THE   CONTRACT. 

§  848.  Another  ground  on  which  the  specific  performance 
of  a  contract  may  be  resisted  is  the  existence  of  some  essen- 
tial defect  in  fhe  subject  matter  of  it,  or  some  variation 
from  the  descrij)tion  contained  in  the  contract.  This  is,  of 
course,  not  a  question  of  title ;  the  acceptance  of  the  title 
will  not  prevent  the  defendant  from  setting  n]^  the  defense 
that  the  title  rehites  to  a  different  subject  matter  from  that 
which  he  contracted  for. (a)  The  cases  in  which  this  varia- 
tion arises  between  the  thing  and  some  representation  made 
in  respect  of  it  are  considered  under  the  head  of  misrepre- 
sentation. (5)  The  cases  in  which  no  such  representation 
has  been  made  it  is  now  proposed  briefly  to  consider. ' 

(a)  Bentley  v.  Craven,  17  Beav.,  204.  (b)  Snpra,  §  624  et  eeq. 

'  Substantinl  defect  in  (lie  contract  is  a  good  defense  in  equity. '[  The  vendor  of 
land  received  a  bond  for  title,  and  gave  a  note  therefor,  which  sho-wed  upon  its 
face  that  it  had  been  so  given.  Held,  that  an  assignee  holder  of  the  note,  in 
case  of  a  deficiency,  cannot  recover  on  such  note,  notwithstanding  he  received 
it  previous  to  its  becoming  due.     Howard  v.  Kimball,  G5  N.  C,  175. 

Variance  beticeeii  the  amount  of  land  sold  and  the  real  quantity. '\  Grant,  J., 
said  in  Deem  v.  Corp.,  etc.,  9  Ves.,  368:  "  There  was  no  instance  of  compelling 
a  man  w^ho  had  contracted  for  a  freehold,  to  take  a  leasehold  estate;  that  where 
a  party  gets  substantial!}'  that  for  what  he  contracts,  any  small  difference  may 
be  remedied  by  compensation;  but  not  where  it  extends  to  the  whole  estate. 
See,  also,  Holmes  v.  Thorp,  1  Halst  's  Ch..  41  o;  Wiune  v.  Reynolds,  G  Paige's 
Ch.  407;  Howard  v  Kimble.  Go  N.  C,  175;  Weems  v.  Bremer,  2  Har.  ct  Gill.. 
390;  Shaw  v.  Vincent,  64  X.  C,  690.  In  Wilcoxon  v.  Calloway,  67  N.  C, 
463,  it  was  held  that,  where  the  quantity  of  land  sold  was  deficient  one-third, 
the  purchaser  might  rescind  the  agreement,  or  demand  a  ratable  abatement  of 
the  price.  See,  also,  Leigh  v.  Crump,  1  Ired.'s  Kq.,  299;  Gentley  v.  Hamilton, 
3  id.,  376;  Jacob  v.  Locke,  2  id.,  bG;  Calcraft  v.  Roebuck,  1  Ves.,  Jr  ,  221. 
Gray,  J.,  said  in  Noble  v.  Googins,  99  ]\Iass..  231:  "The  American  courts 
have  sliown  more  willingness  than  the  English  to  encourage  litiiration  about 
the  amount  of  the  price,  by  reason  of  a  variation  in  the  quantity  ot  hmd  agreed 
to  be  conveyed,  without  clear  evidence  that  the  (juantity  was  made  an  es.sential 
element  of  the  bargain."  See,  also,  Mann  v.  Pierson,  2  Johns.,  37.  "It  is 
unnecessary  for  a  man  who  has  contracted  to  purchase  one  thing,  to  explain  why 
be  refuses  to  accept  another."  Aylcs  v.  Cox,  16  Beav.,  23;  Botran  v.  Daugh- 
drill,  51  Ala.,  312;  Morse  v.  Elniendorf,  11  Paige's  Ch.,  288;  "White  v.  Dobson, 
17  Gratt.,  262;  Napier  v.  Darlington,  70  Pa.  "St  ,  64;  Lehiffer  v.  Pniden,  64 
N.  Y.,  47. 

Encroachmeiit.']  Where  real  estate  is  .sold  free  of  incumbrance,  and  the  same 
is  encroached  upon  by  an  adjoining  owner,  the  sale  may  be  rescinded.  King 
V.  Knapp,  59  N.  Y.,  462;  liing  v.  Bardean,  6  John's  Ch.,  38. 


422         FRY  ox  SPECIFIC  PEKFOKMANCE  OF  CONTRACTS. 

§  8  19.  The  miiterial  distinction  to  be  considered  is  be- 
tween delects  which  are  jDiitent  and  visible  to  eveiy  one  and 
those  which  are  latent ;  for  just  as  at  common  law  a  war- 
ranty, however  general,  is  not  taken  to  include  defects  ap- 
parent at  the  time  of  the  bargain,  as  no  one  could  have 
been  deceived  by  them ;  so,  whilst  latent  defects  are  a 
ground  for  refusing  specific  performance,  patent  defects  are 
not.(c) 

§  850.  Accordingly  wliere  a  man  bought  a  meadow  with 
a  road  round  it  and  a  way  across  it  which  wjere  not  noticed 
in  the  description,  Lord  Rosslyn  nevertheless  enforced  spe- 
cific pierformance  with  costs  \{d)  and  the  circumstances  that 
an  estate  described  as  inclosed  in  a  ring-fence  was  not  so, 
was  held  by  Grant,  M,  E,.,  no  defense  to  a  suit  for  perform- 
ance, (e) 

§  851.  But  where  the  objection  taken  by  the  purchaser, 
who  was  defendant,  was  the  existence  of  certain  water  ease- 
ments, and  it  was  jDroved  that  the  defendant  had  long  lived 
in  the  neighborhood,  was  well  acquainted  with  the  property, 
had  in  passing  the  road  constantly  seen  some  of  the  wells 
on  the  lower  land  supplied  from  the  upper  land,  which  was 
the  subject  of  the  contract,  and  had  on  the  morning  of  the 
sale  been  upon  the  land;  Knight  Bruce,  V.  C,  expressed 
his  opinion,  but  without  giving  the  reasons,  that  no  such 
degree  of  knowledge  or  notice  had  been  proved  as  to  pre- 
clude the  purchaser  from  taking,  the  objection.  (/')  In  this 
case,  it  may  be  observed,  the  objection  to  the  upjDer  lands 
was  the  existence  of  certain  rights  granted  with  the  lower 
lands  to  enter  the  upper  lands,  fetch  water  from  a  spring, 
and  to  cut  and  cleanse  gutters  for  the  conveyance  of  the 
water  to  the  lower  lands  and  similar  easements.  Now,  the 
Avells,  gutters  and  all  the  other  objects  of  sense,  might 
probably  have  existed  without  necessarily  involving  these 
easements ;  and,  if  so,  it  follows  that  the  defect  was,  in  its 
nature,  latent  and  not  really  patent. 

§  859.  With  regard  to  the  latency  of  defects,  it  is  to  be 
observed  that  the  court  will  not  demand  a  minute  examina- 

(c)  Dyer  v.  Hargrave,  10  Ves.,  505;  supra,  Pope  v.  Garland,  4  Y.  &  C.  Ex.,  404;  Cook  v. 
§  658;  cf.  Pothier,  Tr.  flu  Contrat  de  Vente,    Waugh,  2  Giflf..  201. 

Part  II,  chap.  1,  sect  3,  §  1.  (e)  Dyer  v.  Hargrave,  10  Ves.,  505. 

(d)  Oldlleld  V.  Round,  5  Ves.,  508,  and  see       (/)  .^liacklelon  v.  Sutcllffe,  1  De  G.  &  Sm., 

609. 


DEFECT   IN   SUBJECT   MATTER   OF   CONTRACT.  423 

tion  on  the  part  of  the  purchaser,  even  where  the  vendor 
does  not  make  any  representation  ;(r7)  to  render  a  defect 
patent  it  must,  it  seems,  be  an  ob^^ous  and  unmistakable 
object  of  sense. 

§  ^5S.  The  defect  need  not  be  in  the  actual  physical  sub- 
ject-matter of  the  contract,  it  may  consist  in  the  existence 
of  some  liability  of  which  the  other  party  is  ignorant ;  so  a 
vendor  of  a  lease  described  as  subject  to  the  usual  covenants 
cannot,  of  course,  enforce  specific  performance  where  the 
lease  is  subject  to  unusual  ones  :(7iY  and  so  where  the  ven- 
dor of  leasehold  property  had,  before  the  sale,  received 
from  his  landlord  a  notice  of  re-entry  in  default  of  the 
premises  being  repaired,  and  did  not  communicate  the  ex- 
istence of  this  notice  to  the  purchaser,  who.  however,  knew 
of  tlie  state  of  the  premises,  the  contract  was  held  void  at 
the  suit  of  the  purchaser  who  had  been  ejected :(/)  and  at 
common  law  the  undisclosed  fact  that  the  property  in  ques- 
tion is  liable  to  be  taken  under  the  powers  of  an  act  of  Par- 
liament, has  been  held  a  valid  ground  for  rescinding  the 
contract.  (,/)' 

((7)  Cf.  per  James,  L.  J.,  in  Deiiny  v.  Han-  (j)  Ballard  v.  Way,  1  M.  &  W.  5-20.    Dls- 

cock  L   R  6  Ch    V2  tlnguish  from  the  cases  cited  in  this  section, 

(?j)' Hampshire"  V.  Wickens.  7  Ch.  D.,  555  Edwards  Wood  v.  Marjoribanks  a  Giff.,  381; 
(whore  the  subject  of  what  are  usual  cove-  3  De  G.  &  J.,  3-29;  7  H.  L.  C.  Sm,  where  the 
nants  is  fullv  considered,  as  regards  lease-  purchaser  of  au  advowson  was  held  not  en- 
holds)-  cf  Ti'ldeslev  v  Clarkson,  30  Beav.,  titled  to  any  compensation  in  respect  oi  a 
4J9  charge  on  the  living   under  a  grant  from 

(i)  Stevens  v.  A  damson,  3  Stark.,  422.  Queen  Anne's  Bounty. 


»  In  Willis  V.  Astor,  it  was  held  that  where  there  was  a  coveuaut  to  renew  a 
lease  at  a  o-iven  rent,  aud  nothinir  more,  that  this  does  not  carry  with  it  the 
covenants'of  the  old  lease.  A  lease  contained  a  covenant  for  renewal  Held, 
that  the  renewed  lease  need  not  contain  a  covenant  for  further  renewal,  unless 
the  original  instrument  contained  an  express  covenant  for  perpetual  renewal. 
Rut-ei^  V.  Hunter,  6  Johns.,  215;  Phyfe  v.  Wardell,  5  Paige's  Ch.  2G8. 
Where  a  lease  has  been  assigned,  the  assignee  is  entitled  to  specifac  perform- 
ance of  a  covenant  to  renew.  Robinson  v.  Perdy,  21  Ga.,  183.  Where  the 
lessor  covenants  to  extend  a  lease,  without  naming  the  amount  of  rent :  held, 
that  equity  would  not  enforce  the  covenant.  Robiuson  v.  Kettletas,  4  Ldm.  s 
Ch.,  63. 

«  Seaman  v.  Hicks,  8  Paisre,  655,  is  a  case  precisely  in  point.  It  was  there 
said  that  where  the  purchaser  of  lands  contracts  for  a  perfect  title,  he  was 
relieved  from  a  performance  of  the  contract  \ipon  its  appearing  that  the  cor- 
poration of  the  citv.  in  which  the  laud  was  situated,  were  empowered  to  take 
a  portion  of  the  laud,  without  compensation  for  the  buildings  thereon,  though 
the  probability  that  such  power  would  be  exercised  as  very  remote.  Durrett  v. 
Simpsou  S  M'our.  517,  affords  an  illustration  of  the  sjime  doctrine,  that  a  pur- 
chaser shall  be  compelled  to  take  only  that  for  which  he  contracts.  Iii  that 
case  A  sold  to  B.  a  lot  of  land,  with  a  hotel  on  it,  which  was  supplied  with 
water  bv  pipes  leadim:  from  a  spring  owned  by  A.,  and  situated  some  three 
hundred  yards  from  the  hotel.  A.  stipulated  in  his  coutract  '•  that  the  priyi- 
le^e  of  the  water  works,  as  thev  now  are,  shall  remain  to  B.  forever,    aud  the 


424        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

§  854,  The  existence  of  a  defect,  unknown  at  the  time 
of  the  contract  both  to  the  vendor  and  the  purchaser,  will 
not,  it  seems,  be  a  bar  to  the  enforcement  of  the  contract,  (/l) 
unless,  probably,  where  the  defect  is  such  as  lies  properly 
in  the  knowledge  of  the  vendor. 

§  S5«5.  Where  the  variation  between  the  thing  and  the 
description  of  it  seems  rather  in  the  nature  of  an  excess 
than  of  a  defect,  and  so  in  favor  of  the  purchaser,  the  ven- 
dor is  nevertheless  disabled  from  enforcing  the  contract  on 
an  unwilling  purchaser.  Thus,  freehold  land  cannot  be 
forced  on  a  purchaser  who  bought  it  as  copy-hold.  "  It  is 
unnecessary,"  said  Lord  Romilly,  M.  E,.,  "for  a  man  who 
has  contracted  to  purchase  one  thing  to  exj^lain  why  he  re- 
fuses to  accept  another.  (Z) 

§  856.  Where  an  uncertainty  exis^;s  as  to  the  subject- 
matter  of  the  contract,  but  the  description  by  which  it  was 
sold  is  eqully  uncertain,  there  is,  of  course,  no  variation  or 
defect.  Therefore  where  property  was  sold  by  a  general 
description  as  being  part  freehold  and  part  leasehold,  and 
the  exact  boundary  between  the  freehold  and  leasehold 
parts  of  the  estate  could  not  be  ascertained,  this  circum- 
stance furnished  no  defense  to  a  suit  for  specific  perform- 
ance, {m) 

§  857.  A  purchaser  may,  of  course,  contract  for  the  pur- 

{k)  Per  Wigram,  V.  C,  in  Lucas  v.  James,  holds:  Hick  v.  Pliillips,  Prec.  in  Ch.  575;  cf. 

8  Ha.,  418.    See,  also,  Parkinson  v.  Lee,  2  Twining  v.  :Morrice,  2  Bro.  C.  C,  331. 

East,  314  (771)  Monro  v.  Taylor,  i  Mac.  &  G,  713.    As 

(0  Ayles  V.   Cox,  16  Beav.,  23.     See  the  to  conditions  respecting  such  a  minglina:  of 

observations  fif  Lord  St.  Leonards  on  this  tenures,  see,  also,  Cronse  v.  Laurence,  9  Ha., 

case.  Vend.,  251 ;  cf  also  .Stanton  v.  Tatter-  463;  Crosse  v  Keene.id.,  409;  cf.  .Jeffervs  v. 

8all,l  Sm.  &  G.,  529.    Copyholds  cannot,  of  Fairs,  4  Ch.  D.,  448.    Davis  v.  .•"hepherd  (L. 

course,  be  forced  on  a  purchaser  of  free-  R.  1  Ch.,  410)  is,  of  cx)urse,  clearly  distin- 
guishable. 

privilege  of  the  conveyance  of  the  water  "as  it  now  is."  After  this  contract, 
B.  sold  the  spring  and  the  intervening  lands,  reserving,  in  .all  the  deeds  but  one, 
the  right  of  entering  and  repairing  the  pipes,  and  in  that  one  it  was  stipulated 
that  the  pipes  should  remain  undisturbed."  B.  having  paid  all  the  purchase 
money  before  the  day  when  the  property  was  to  have  been  delivered,  refused 
to  accept  a  conveyance,  and  tiled  his  bill  for  a  rescission  of  tlie  contract,  and 
recoverj'  of  the  money  paid  by  him.  Held,  that  tlie  contract  should  be  re- 
scinded, and  that  A.  .should  refund  the  price  paid  by  B.,  the  rents,  during  the 
time  B.  occupied  the  premises,  to  be  set  off  against  the  interest.  Durrett  v. 
Simpson,  3  Monr.,  517.  Though  equity  does  not  demand  a  minute  examina- 
tion by  the  purchaser,  it  nevertheless  requires  that  he  should,  at  least,  exercise 
due  diligence.  So,  where  land  was  sold  by  a  trustee  under  a  deed  of  trust,  and 
the  purchaser  could,  by  the  exercise  of  proper  diligence,  have  ascertained 
•whether  the  land  was  subject  to  any  rights  of  dower,  equity  refused  to  relieve 
the  vendee  from  his  contract,  because  a  right  of  dower  in  the  iand  did  exist, 
and  he  was  left  to  his  legal  remedy,  in  case  he  should  at  any  time  be  disturbed 
in  his  possession.     Greenleaf  v.  Queen,  1  Pet.,  138. 


DEFECT   IN   SUBJECT   MATTER   OF   CONTRACT.  425 

chase  of  a  thing  with  all  faults,  and  lie  then  take  on  himself 
the  knowledge  of  the  title  and  of  the  qualities  of  the  sub- 
ject. The  cases  on  the  effect  of  this  clause  in  a  contract 
seem  to  show,  first,  that  such  a  contract  is  binding,  liow- 
ever  many  may  be  the  defects  in  the  subject,  and  whether 
they  be  latent  or  patent,  and  whetlier  discoverable  by  the 
purchaser  or  not  ;{n)  secondly,  that  it  will  not  protect  the 
vendor  where  he  takes  positive  means  to  conceal  the  de- 
fects, (o)  as  where  a  vessel  was  moved  off  her  ways  wliere 
she  lay  dry  into  the  water  in  order  to  conceal  her  worm- 
eaten  bottom  and  broken  keel  ;{2y)  and  thirdly,  that  it 
will  not  protect  the  vendor  when  he  make  a  misrepresenta- 
tion, and  that  misrepresentation  is  embodied  in  the  con- 
tract, ($')  or  is  both  false  and  fraudulent. (^7-)  The  court  re- 
fuses to  direct  any  inquiry  as  to  title  where  the  sale  is  Avith 
all  faults,  and  the  vendor  only  sells  such  interest  as  he 
has.  (5)' 

§  858.  The  effect  on  the  specific  performance  of  the  con- 
tract of  a  defect  in  the  thing  sokl,  or  a  variation  from  the 
description,  is  two-fold,  according  to  its  magnitude.  If,  in 
the  view  of  the  court,  it  be  unessential,  the  contract  may 
yet  be  performed,  but  with  compensation  ;  if  it  be  essen- 
tial, it  confers  on  the  party  injured  the  right  of  rescinding 
the  contract  and  defeating  its  performance,  (z!)"    The  distinc- 

(n)  Baglehole    v.  Walters.  3    Camp.,   154;  (q)  "Schneider  v.  Heath,  3  Cam o..  506. 
Pickering  v  Dowson,  4  Taunt.,  779,  overrul-  (7-)  Early  v.  Garrett, !)  B.  &  C./JiS;  Spring- 
ing Lord  Keynon.M.  K  'srlecislon  in  Mtllish  well  v   Allen,  2  Eas^t.  448  n. 
T.  Motteux,  Peake,  115,  that  the  stipulation  (s)  see  intra,  §  li^'     ^ee,  nl^o,  Hume  v. 
in  question  only  apiilies  to  laults  which  the  Pocock,  L.  K.  1  Kq.,  423 ;  1  Cii.,  37!). 
purchaser   can    discover   or    the  vendor  is  (0  ^lanton  v    Taitersall,  1  Sui   .C  G.,  529; 
ignorant  of  Turquand  v.  Rhodes,  IG  '^  .  K.,  1074;  el".  Mc- 

(o)  Baglehole  v.  Walters,  3  Camp.,  154.  Kenzie  v.  Hesketh,  7  Lh  D.,  ti82. 

ip)  Schneider  v.  Heath,  3  Camp  ,  50(4. 

'  So,  where  the  vendee  of  land  agreed  to  risk  the  title  as  to  a  small  part  of 
the  land  which  the  vendor  represented  might  be  covered  by  an  adverse  claim, 
and  said  claim  was  afterwards  succcssfuliy  asserted,  it  was  held  that  the  sale 
should  not  be  rescinded  on  that  account,  nor  the  value  of  it  discounted  from  a 
note  for  the  purchase  money  held  by  an  assignee  of  the  vendor,  but  that  the 
vendee's  remedy  was  on  the  warranty.  Gates  v.  Raleigh,  1  Monr.,  1G4;  .see, 
also,  Winne  v.  Reynolds,  6  Paige,  407. 

^  A  specific  performance  will  be  decreed  where  the  vendor  is  able  to  perform 
his  contract  in  substance,  although  there  is  a  trifling  variation  in  the  descrip- 
tion of  the  premises,  -or  a  trilling  incumbrance  on  tlie  title  which  cannot  be 
removed,  and  which  is  a  proper  subject  of  compensation  to  the  purchaser. 
Winne  v.  Reynolds,  G  Paige,  407.  And  on  a  bill  by  a  vendee  for  the  specific 
performance  of  an  agreement  for  the  sale  of  lands,  a  slight  variation  or  default, 
on  the  part  of  the  vendee,  in  the  performance  of  work  to  be  done  by  him  be- 
fore the  deed  was  to  be  delivered,  will  not  prevent  a  decree  for  specific  jterform- 
ance,  if  the  difference  is  a  proper  subject  for  compensation  in  money.     Humes 


426        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

tion  between  these  two  classes  of  cases  will  be  considered 
in  the  chapter  on  compensation,  (z^)' 

(m)  Part  V,  chap.  3,  §  1174  et  seq. 

V.  Thorpe,  1  Halst.'s  Ch.  (N.  J.),  415.  King  v.  Bardeau,  6  John.'s  Cli.,  38, 
is  <a  case  belonirinir  to  the  same  class.  It  was  a  case  of  sale  of  property  at 
auction:  and  tiionsrh  the  description  was  substantially  true,  there  was  a  slight 
variation  or  defect  in  the  property  over  the  description.  And  it  was  held  that 
where  two  adjoinini!:  lots  are  sold  together,  in  one  parcel,  and  for  one  price, 
and  on  one  (If  the'lots  were  buildings  which  projected  two  feet  over  on  the 
other  lot,  that  this  did  not  constitute  so  material  a  defect  in  the  subject  matter 
as  to  warrant  the  abandonment  of  the  contract  by  the  purchaser.  Byit,  as  the 
projection  was  not  so  obviously  visible  as  to  conclude  the  purchaser,  if  he  had 
exercised  ordinary  diligence,  and,  as  the  vendor,  in  the  advertisement  of  sale, 
described  the  buildings  as  being  on  one  of  the  lots,  the  court  granted  the  pur- 
chaser compensation  for  the  diminution  of  value  occasioned  by  this  projection, 
to  be  deducted  from  the  price. 

'  Suhject  matter  of  the  contract  accidentally  destroyed.']  Where  the  owner  of 
■real  estate  agreed  to  sell  the  same  for  a  definite  sum,  and  before  it  is  paid  a 
house,  upon  the  premises,  is  accidentally  destroj-ed  by  fire;  held,  that  no  part 
of  the  purchase  money  could  be  rescinded  or  retained  by  the  vendor.  Bacon 
V  Simpson,  '6  M.  &  M.,  78;  Wells  v.  Colman,  107  Mass.,  514;  Thompson  v. 
Gould,  20  Pick ,  134.  In  Snyder  v.  Murdock,  51  Mo.,  175,  it  was  held,  that 
where  an  executory  contract  for  the  sale  of  real  property  had  been  made,  and 
a  bond  for  title  and  notes  given  in  payment  for  the  property,  that  the  same 
■was  then  at  the  risk  of  the  purchaser,  and  that  it  was  his  loss  if  it  was  destroyed 
by  fire  A  written  contract  was  made  for  the  purchase  of  land,  and  the  build- 
ings thereupon  were  accidentally  destroyed  by  fire.  Held,  that  neither  party 
could  rescmd  such  contract,  unless  the  buildings  were  the  principal  inducement 
of  the  purchase  Banty  v.  Kuworth,  1  Montana,  133.  There  was  a  spring  of 
water  on  land  of  the  vendor,  which  was  conveyed  in  passes  to  the  land  of  the 
vendee,  and  was  a  great  inducement  to  the  purchase.  Held,  that  the  destruc- 
tion of  the  water  privilege  after  the  sale,  and  before  conveyance,  would  fur- 
nish a  sufficient  ground  for  abandoning  the  contract.  Durett  v.  Simpson,  3 
Monr.,  517. 


WANT    <»F    A    GOOD    TITLK.  421 


CHAPTER  XVIII. 

OF   TJIE    WANT    OF   A    GOOD    TITLK. 

§  8i>9.  Where  the  vendor  of  land  sues  the  purchaser  for 
a  specitic  performance  of  the  contract,  the  defendant  is 
entithxl  to  have  the  action  dismissed,  if  it  appear  that  the 
plaintiff  cannot  make  out  to  the  land  a  title  free  from  rea- 
sonable doubt.'  The  defendant  may  have  the  action  thus 
dismissed  at  the  trial,  x^i^ovided  the  defect  in  title  has  been 
l^rominently  put  forward  in  the  pleadings,  and  the  court 
can  then  decide  the  question,  («)  or  even  where  the  objection 
appears  on  the  evidence  at  the  trial,  and  is  a  different  objec- 
tion from  that  on  which  the  defendant  had  relied. (/>)  But 
the  question  more  usually  arises  after  the  reference  to  title 
has  been  made." 

(«)  Lucas  V.  James,  7  Ha.,  418.  425.  (/>)  Baskcomb  v.  Phillips,  29  L.  J.  Ch.,  380; 

6  Sur.  N.  S.,  363. 

'  Watts  V.  Waddle,  1  McLean.  200;  Bates  v.  Delavau,  5  Pai.L,'e,  20t);  Cans  v. 
Rensliaw,  -3  Barr.,  )]\:  Fitzpatrick  v.  Fcathcrstoue,  ;5  Ala..  40;  Beckwitli  v. 
Kouns,  0  B.  Monr.,  422;  Owiiiys  v.  Baldwin,  8  Gill.,  3o7.  And  it  i.s  not  neces- 
sary that  the  vendee  should  stipulate  in  the  contract  that  a  covenant  of  war- 
ranty shall  be  inserted  in  his  deed.  This  will  be  prcsunif^d,  unless  the  vendee 
expressly  takes  the  risk  oT  title.  Bates  v.  Delavan.  5  Paige,  279.  An  agree- 
ment to  give  good  and  sufficient  deeds  to  lands,  must  be  construed  to  mean 
deeds  in  fee  simple.  New  Barl)adoes  Toll  Bridge  v.  Vreeland,  3  Green's  Cl>., 
157.  It  is  sufficient  if  the  vendor  is  able  to  make  a  good  title  at  any  time  I>e- 
fore  the  decree  is  pronounced,  although  he  liad  not  a  good  title  when  the  con- 
tract was  made.  Hepburn  v.  Auld,  5  Cranch,  2t)2.  275;  Finley  v.  Lynch,  3 
Bibb.,  ;;6(5;  Seymour  v.  Delancev,  3  Cowen.  445;  Pierce  v.  Nichols,  1  Paige, 
244;  Cotun  v. 'Ward,  3  Monr.,  304;  Baldwin  v.  Salter.  8  Paige,  473;  Dutch 
Church  v.  Mott.  7  id.,  78;  Poole  v.  Shergold,  2  Bro.  C.  C,  110.  An  exception 
to  this  rule  is  where  a  contract  is  made  in  bad  faith  bv  one  who  knows  thai 
he  has  neither  title  nor  the  legal  or  equitable  means  of  acquiring  one.  Mo.ss  v. 
Hanson,  17  Peun.  (5  Harris),' 379. 

^  Excess  or  deficiency  of  real  estate  xold.^  Where  there  is  no  designated  (iu;in- 
tity,  and  the  estate  is  sold  in  gross,  a  party  can  have  no  relief  in  eciuily  i-ither 
for  an  excess  or  deficiency.  The  case  must,  of  course,  be  devoid  of  fraud. 
Kent  v.  Carcand,  17  Md.,  291;  Gilman  v.  Hincle,  8  W.  Va..  2<;2;  Foley  v. 
McKeown.  4  Leigh,  678.  Where  the  land  was  sold  by  the  acre,  the  number 
sold  must  be  found.  Wilson  v.  Randall,  67  N.  Y.,  338.'  Where  the  estate  sold 
is  described  by  boundaries,  or  equivalent  words  to  more  or  less  are  used,  sudi 
a  statement  will  control  a  statement  as  to  boundary  or  (luantity,  and  a  surplu.«i 
or  deficiency  will  not  be  a  sulficient  reason  for  relief  at  eipiity,  unle.^s  there  is 
such  great  variation  as  to  give  rise  to  the  presumiilion  of  gross  fraud  or  mis- 
take.    Stebbins  v.  Eddy,  4  Mason,  414;  Marvin  v.  Bennett,  8  Paige's  Ch.,  312; 


428         FIIY  ox  SPKCiriC  PKItFOUMANCE  OF  CONTRACTS. 

i;  860.  The  old  practice  of  the  court  of  chancery,  in  all 
cases  of  dispute  as  to  the  title  of  the  estate  sold,  was  to 
decide  either  for  or  against  the  validity  of  the  title,  and 
either  to  compel  the  purchaser  to  take  it  as  good,  or  to  dis- 

Winch  V.  Wincliestcr,  1  Ves.  &  B.,  375:  Stull  v.  Hurst,  9  Gill..  446;  Morris 
Canal  Co  v.  Einmett,  9  Paige's  Ch.,  168;  Kotchum  v.  Stout,  20  Oliio,  453; 
Faurc  v.  Martin,  3  SeUl.,  210;  Noble  v.  Gog,-!:ins,  99  Mass  ,  231.  In  Hudson  v. 
Hud-son,  64  Ga.,  513,  it  was  lield,  that  although  the  contract  described  the 
estate  as  containing  one  hundred  acres  more  or  less,  yet  the  vendee  was  entitled 
to  no  abatement,  notwithstanding  a  deficiency  was  discovered  of  thirty-six 
acres. 

Where  real  'property  is  sold,  the  vendor  must  give  a  good  title.'\  Equity  will  not 
decree  specific  performance  of  a  contract  for  the  purchase  of  real  property, 
wliere  the  vendor,  for  any  reason,  cannot  give  a  perfect  title.  He  must  be  the 
owner,  and  he  must  have  the  legal  or  equitable  right  to  convey.  Lay  v.  Huber, 
3  Watts.  367;  Garuett  v.  Macon,  2  Brock.,  185;  Fitxpatrick  v.  Featherstone,  3 
Ala.,  40;  Pipkin  v.  James,  1  Humph.,  325;  Hurley  v.  Brown,  98  Mass.,  545; 
Morgan  v.  Morgan,  2  Wheat  ,  290;  Tomlin  v.  McChord,  5  J.  J.  Marsh.,  135; 
Owings  v.  Baldwin,  8  Gill.,  337;  Stevenson  v.  Buckstone,  15  Abb.  Pr  ,  352; 
Nicol  v.  Carr,  35  Pa.  St.,  381.  It  makes  no  difference  that  the  land  has  been 
sold  under  a  decree  of  the  court,  if  the  title  is  imperfect.  Coster  v.  (lark,  3 
Edm.'s  Ch.,  428.  An  injunction  against  collecting  the  purchase  price  was 
granted  until  the  title  should  be  made  perfect,  in  a  case  where  the  vendor 
frauduentlv  represented  that  he  had  an  absolute  title.  Hinkle  v.  ]Margerum,  50 
Ind.,  240;  "Davis  v.  Perkins,  40  Iowa,  82.  Where  a  party  holding  the  legal 
title,  sold  for  a  valuable  consideration,  it  was  held,  that  his  vendee,  without 
notice  of  outstatidiug  equities,  took  the  property  divested  of  su(-h  equities. 
Farmers'  Nat.  Bank  v.  Fletcher,  44  Iowa,  252.  In  order  that  the  vendor  shall 
maintain  a  decree  for  specific  performance,  he  must  show,  to  a  moral  certainty, 
that  the  vendee  will  receive  such  a.  title  as  he  contracted  for.  Hinckley  v. 
Smith,  51  N.  Y.,  21;  Welsh  v.  Barton,  24  Ohio  St.,  28.  Real  property  was 
sold  at  auction,  warranted  free  from  incumbrance,  and  a  vendee  paid  full  value 
for  the  property.  Held,  that  where  he  afterwards  discovered  tliat  there  were 
mortgages  upon  it,  he  was  not  bound  to  retain  the  property.  Mayer  v.  Adrian,. 
77  N.  C,  83. 

Specific  jierformavce  icill  not  be  decreed  where  the  title  is  doubtful.']  The  court 
said  in  Dobbs  v.  Norcross,  24  N.  J.  Eq.,  327.  "  Every  purchaser  of  land  has 
a  right  to  demand  a  title,  which  shall  protect  him  from  anxiety,  lest  annr^ying, 
if  not  successful,  suits  be  brought  against  him,  and  probably  take  from  him,  or 
his  representatives,  land  upon  which  money  was  invested.  He  should  have  a 
title  which  should  enable  him  not  onlj^  to  hold  his  land,  but  to  hold  it  in  peace, 
and,  if  he  wishes  to  sell  it,  to  be  rea.sonablj'  sure  that  no  fiaw  or  doubt  will 
come  up  to  disturb  its  niMrketable  value  "  See,  also,  Pyrke  v.  Waddington,  10 
Hare,  1 ;  Sturtevant  v.  Jacques,  14  Allen,  525;  Griffin  v.  Cunningham,  19  Gratt  , 
571;  Richmond  v.  Gray,  3  Allen,  25;  Voorhies  v.  De  Myer  3  Sandf.'s  Ch.,  614;. 
Swayne  v.  Lyon,  67  Pa.  St.,  436;  Smith  v.  Turner,  50  Ind.,  367;  Jeffreys  v. 
Jeffreys,  117  Mass.,  184.  Lord  Eldon,  Chancelor,  said  in  Stapylton  v.  Scott, 
16  Ves.,  272,  that  the  doubt,  in  order  to  prevent  specific  performance,  must  be 
"considerable  and  rational,  such  as  would  and  ought  to  induce  a  prudent  man 
to  pause  and  hesitate;  not  based  on  captious,  frivolous  and  astute  niceties,  but 
such  as  produce  real  bona  fide  hesitation  in  the  mind  of  the  chancellor."  See 
Kostenbader  v.  Spotts,  80  Pa.  St.,  430. 

Long  continued  naked  possession,  specific  perform ance.]  Specific  performance 
will  not  be  decreed,  and  a  purchaser  compelled  to  accept  the  title,  which  rests 
merely  in  naked  possesion;  even  twenty  years  uninterrupted  pos.session  is  not 
sufficient  to  raise  the  presumption  of  a  conveyance.  Cunningham  v.  Sharp,  11 
Humph.,  116;  Lewis  v.  Herndon,  3  Litt.,  358;  Smith  v.  Hollenbeck.  57  111., 
223;  see,  however,  Stroher  v.  Button,  6  Fhila.,  185;  Chapman  v.  Lee,  55  Ala.,. 
616. 


WANT   OF   A   GOOD   TITLE,  429 

miss  the  bill  on  tlie  score  of  its  being  bacl.(c)  But  the  case 
of  Maiiow  V.  Smith,  (<^)  before  Jekyll,  M.  R.,  followed  by 
Shai^land  v.  Smith,(e)  before  Lord  Thurlow,  established  the 
practice  of  allowing  a  class  of  titles  which,  without  affirm- 
ing them  to  be  bad,  the  court  considered  so  doubtful  as  that 
it  would  not  comj^el  a  purchaser  to  take  them.(/) 

§  SOI.  Lord  Eldon,  though  feeling  himself  bound  to  ad- 
here to  this  as  an  established  rule,  on  more  than  one  occa- 
sion expressed  his  dissent  from  it  on  principle,  and  bewailed 
the  great  mischiefs  wdiich  had  resulted  from  it.  (17)  But  such 
expressions  of  opinion  did  not  shake  the  rule :  and  it  has 
been  recognized  by  the  House  of  Lords  as  one  of  the  estab- 
lished rules  of  a  court  of  equity.  (7^) 

§  862.  Against  the  rule  it  has  been  urged  that  it  is  logi- 
cally absurd,  as  well  as  practically  injurious  ;  for  every  title 
is  good  or  bad,  and  if  so,  the  court  ought  to  know  nothing 
of  a  doubtful  title.  For  the  rule  it  has  been  urged  in  effect 
that,  having  regard  to  the  nature  of  an  action  for  specific 
performance,  the  rule  in  question  is  necessary  in  point  of 
practical  justice,  and  correct  in  reasoning.  It  must  be  re- 
membered that  the  judgment  of  the  court  in  such  an  action 
is  in  personam  and  not  in  rem ;  that  it  binds  only  those 
who  are  parties  to  the  action,  and  those  claiming  through 
them,  and  in  no  way  decides  the  question  in  issue  as  against 
the  rest  of  the  w^orld  ;(/)  and  that  doubts  on  the  title  on  an 
estate  are  often  questions  liable  to  be  discussed  between  the 
owner  of  the  estate  and  some  third  j)erson  not  before  the 
court,  and,  therefore,  not  bound  by  its  decision. (7)  If, 
therefore,  there  be  any  reasonable  chance  that  some  third 
person  may  raise  a  question  against  the  owner  of  the  estate 
after  the  completion  of  the  contract,  the  court  may  consider 
this  to  be  a  circumstance  wdiich  renders  the  bargain  a  hard 
one  for  the  purchaser,  and  one  which  in  the  exercise  of  its 
discretion  it  will  not  compel  him  to  execute.  Though  every 
title  must  in  itself  be  either  good  or  bad,  there  must  be 

(c)  Seel  Bro.  C.  C.,76,  n.  .  Mulgrave,  2  id  ,  526;  Roake  v.  Kt<l<i,  5  Id., 

(d)  2  P.  Wms.,  198.  647;  Willcox  v.  Bellacrs,  T.  &  U  .  491 

(e)  1  Bro.  C.  C,  75.  Lord  Eldon  was  In  the  (g)  In  Vancouver  v.  Bliss,  11  Ves.,  -tCJ,  and 
habit  of  treating  this  as  the  first  case  in  in  Jerroise  v.  Duke  of  Northumberland,  1  J. 
which  the  later  rule  had  prevailed:  but  in  &  W.,568 

Sloper  V.  Firih,  2  V.  &  B.,  149,  Grant,  M.  R.,  (h)  See  per  Lord  Wcstbury  in  Parker  v. 

referred  to  the  earlier  cases,  and  stated  that  Tootal,  11  II.  L.  C  ,  158 

the  rule  in  question  had  been  repeatedly  (i)  See  per  Jessel   M.  R.,  in  Osborne  to 

acted  on  by  Lord  Hardwicke.  Rowlett,  13  Ch.  U.,  7SI. 

(/)  See,  also,  Cooper  v.  Dennc,  4  Bro.  C.  C„  (j )  See  v)er  Turner,  V.  C,  in  Glass  v.  Rich^ 

8U;  S.  C  ,  1  Ves.  Jun.,  565;  Sheffield  v.  Lord  arusou,  9  Ha.,  7ul. 


430         FKY  ON  SPECIFIC  PEKFOKMANCE  OF  CONTRACTS. 

many  titles  wliich  the  court  cannot  pronounce  with  cer- 
tainty to  belong  to  either  of  these  categories  in  the  absence 
of  the  parties  interested  in  supporting  both  alternatives, 
and  without  -having  h^-ard  the  evidence  they  might  have  to 
produce,  and  the  arguments  they  might  be  able  to  urge  : 
and  it  is  in  the  absence  of  these  parties  that  the  question  is 
geiiei-ally  agitated  in  proceedings  for  specific  performance. 
The  court,  when  fully  informed,  must  know  whether  a  title 
be  good  or  bad  ;  when  partially  informed,  it  often  may  and 
ought  to  doubt.' 

g  8C;{.  It  is  by  no  means  easy  to  express  what  amount  of 
doubt  upon  a  point  there  must  be,  to  induce  the  court  to 
refuse  speciiic  performance :  and  this  difficulty  has  been 
increased  by  the  ebb  and  flow  of  judicial  opinion  and  de- 
cision for  and  against  the  rule,  which  has  characterized  the 
cases  of  the  last  quarter  of  a  century.  One  mode  of  measur- 
ing the  doubt  has  been  by  applying  the  question,  whether 
it  is  such  a  title  as  that  the  judge  himself  would  lend  his  own 
money  upon  it.  The  court  "has  almost  gone  the  length,'^ 
said  Lord  Eldon,  "of  saying  that  unless  it  is  so  confident 
that  if  it  had  £95,000  to  lay  out  on  such  an  occasion,  it 
would  not  hesitate  to  trust  its  own  money  on  the  title,  it 
would  not  compel  a  purchaser  to  take  it. "(/«:) 

§  861.  In  another  case.  Lord  Eldon  put  the  question  for 
the  court  as  being,  "  whether  the  doubt  is  so  reasonable  and 
fair,  that  the  property  is  left  in  his  (the  purchaser's)  hands 
not  marketable:  "(^)  but  a  marketable  title  being  "one 
which,  so  far  as  its  antecedents  are  concerned,  may  at  all 
times  and  under  all  circumstances  be  forced  on  an  unwilling 
purchaser," (?«)  the  observation  seems  not  much  to  assist  us 
in  measurii;ig  how  great  the  doubt  must  be. 

§  865.  It  was  formerly  held  that,  though  the  court  might 
entertain  an  opinion  in  favor  of  the  title,  yet  if  it  were  satis- 
fied that  that  ox)inion  might  fairly  and  reasonably  be  ques- 

(^'l  111  .Jervoise  v.  Duke  of  Xorthumber-  (0   In  Lord  Braybroke  v.  Inskip,  8  Ves., 

land.l  J.  &  W.,569.    See,  also,  Sheffield  t.  428. 

Lord  Mulgrave,  2  Ves.  Jiin.,  526;  per   Tur-  (m)  Per  Turner,  V.  G.,  in  Pyrke  v.  Wad- 

ner,  V.  C,  in  Pyrke  v.  Waddinghaoi.lO  IIa.,9.  dinghfhn,  10  Ua.,  8. 

'  It  has  repeatedl}-  been  decided  that  equity  will  not  compel  a  vendee  to  take 
a  doubtful  title.  Butler  v.  O'Hear,  1  Dcs.,  382;  Lewis  v.  Herndon,  o  Litt.,  158; 
Kelly  V.  Bradford,  3  Bibb,  817;  Seymour  v  Delancey,  1  Hop.,  ^dC;  Young 
V.  Lillard,  I  Marsh.,  iH'i;  Morgan  v.  Morgan,  2  Wheat.,  290;  Lougworth  v. 
Taylor,  1  McLean,  200. 


WANT   OF   A   GOOD    TITLE.  431 

tioned  by  other  competent  persons,  it  would  refuse  specilic 
performance.  Thus,  in  a  case  before  Leach,  V.  C,  he  ex- 
pressed the  strong  inclination  of  his  opinion  to  be  in  favor 
of  the  title,  and  yet  refused  the  relief  sought  by  the  plain- 
tiff ;(72)  and  in  the  case  of  Pyrke  v.  Waddingham,(o)  in 
which  Turner,  V.  C,  discussed  the  subject  now  before  us, 
he  expressed  an  opinion  in  favor  of  the  title,  but,  neverthe- 
less, dismissed  the  vendor's  bill,  with  costs.  P^or  this  reason 
it  was  held  that  the  court  would  not  force  a  title  on  a  pur- 
chaser in  opposition  to  the  decision  of  another  court,  though 
it  might  think  that  decision  to  be  wrong. (^j>)  Accordingly, 
the  court  of  appeal  in  chancery  in  one  case  dismissed  an 
appeal,  though  thinking  the  title  good,  on  the  ground  of  the 
opinion  of  the  judge  below  -.{q)  though  the  same  measure  of 
deference  was  not  extended  to  the  opinion  of  a  conveyanc- 
ing counsel  of  the  court. (r) 

§  866.  But  these  cases  cannot  now  be  relied  on  ;  for, 
since  the  case  of  Pyrke  v.  AVaddingham,  there  have  been 
something  like  a  reaction  against  that  case,  and  a  tendency 
to  lessen  the  area  of  doubt  as  regards  titles. 

The  very  same  title  which  Turner,  Y.  C,  refused  to  force 
on  a  purchaser  in  Pyrke  v.  Waddingham,  was  forced  on 
another  purchaser  by  Lord  Romilly,  M.  R.,  not  on  the 
ground  that  the  principles  laid  down  in  that  case  were  erro- 
neous, but  that  they  did  not  justify  the  decision. (5) 

§  867.  And  so  as  regards  the  decision  of  an  inferior  court; 
the  judges  of  the  court  of  appeal  have  held  that  they  are  in 
no  wise  bound  by  such  (Jecision,  and  that  where  they  con- 
sider that  there  is  no  reasonable  doubt,  the  adverse  decision 
of  the  inferior  court  will  not  be  a  suflicient  reason  to  i-pfiise 
the  plaintiff  relief,  {t) 

§  868.  "With  resi)ect  to  the  common  cases  of  doubtful 
title,"  said  Lord  St.  Leonards,  "I  cannot  agree  with  the 
proposition,  that  an  unfavorable  decision  in  the  court  of 
inferior  jurisdiction  renders  the  title  doubtful.     The  judge 

(«)  Price  V.  strange,  6  Mad.,  159, 1G4.  pendens),  ami  Wripley  v.  Sykos,  21   Itcav., 

(0)  10  Ila.,  1;  of.  Rogers  v.  Waterhouse,  4  337.    See,  also,   Highpate   .vrchway  Co.   v. 

Drew  ,329.            ■  Jeakes,  L.  II.  12  Eq,  U;  Hell  v.  Holtbv,  Id., 

(»)  liobe  V.  Callaiid,  5  Ves..  186.  193;  Au.stin  v  Tawncy,  L.  K.  2  Ch.,  H3;  Os- 

Xq)  Collier  v.  Mclican,  L.  U.  1  Ch.,  SI ;  and  borne  to  Itowlctt.  13  Ch.  D.,  774,  "81 ;  Wise  v. 

see  Haiiulton  v.  liuckmastcr,  L.  li.  3  Eq.,  323.  Pipt-r,  id.,  848,  ^5.5. 

(r)  H;'rj!Uon  v.  Buckmaster,  L.  R.  3  Eq.,  (t)  lleloley  v  Carter,  L  K  4(  h.iH;  Alex- 

323.  ander  v.  MilLs,  id  G  ih.,  124 ;  Hadlord  v.  Wil- 

(s)  Ml  Fi      ?  ".  Trinder,  L.  R.  10  Eq.,  449.  lis.  il.  7  Ch.,  7,  reversing  b.  C,  L.  K.  12  Eq., 

See,  altt),     ..  iv    Ilutchens,  32  Beav.,615(lls  105. 


432      FHY  ox  spKcrFir  perfokmance  of  contracts. 

of  the  .superior  court  would  still  be  bound  to  exercise  his 
own  discretion  and  decide  according  to  his  own  judg- 
ment." (i^)  This  language  has  been  cited  with  approval  by 
the  court  of  appeal  in  chancery  in  England,  (w) 

§  S09.  The  donbt  which  may  prevent  the  court  from 
compelling  the  purchaser  to  accept  a  title  may  be  a  doubt 
either  of  law  or  of  fact ;  and,  as  to  law,  it  may  be  connected 
with  the  general  law  of  the  realm, (-zfj)  or  with  the  construc- 
tion of  particular  instruments  ',{x)  and,  as  to  fact,  it  may 
be  in  reference  to  facts  appearing  on  the  title,  or  to  facts 
extrinsic  to  it.(?/)  Again,  it  may  be  about  a  matter  of 
fact  which  admits  of  proof,  but  has  not  been  satisfactorily 
proved, (^)  or  about  such  a  matter  as  from  its  nature  admits 
of  no  satisfactory  proof,  as  the  negative  proposition  that 
there  was  no  creditor  of  the  vendor  capable  of  taking  ad- 
vantage of  an  act  of  bankruptcy,  (a) 

§  870.  It  is  not  easy  to  give  any  perfect  classification  of 
the  doubts  which  would  and  of  those  which  would  not  pre- 
vail with  the  court,  but  the  following  attempt  may  not  be 
useless.  The  court  Avould,  it  is  conceived,  consider  the  title 
doubtful  in  the  following  cases  :' 

(M)  Sheppard  v.  Doolan,  3  Dr.  &  War  ,  8.  v.  Lord  Clanmorrls,  3  Bll  ,  62;  but  as  to  this 

See,  too,  per  Jessel,  M.  R.,  in  Osborne  to  see  §§  770,  771. 

Roniett,  13  Ch.  D.,  781     Consider  Cook  v.  (x)  Lincoln    v.    Arcedecline,  1    Coll.,  38; 

Dawaon,  3  De  ii.  F.  &  J.,  130.  Bristow  v.  Wool,  id.,  480;  per  Turner,  V.  C, 

(v)  In  Beioley  v.  Carter,  L.  R.  4  Ch.,  236,  in  Pyrke  v.  Weddingham,  10  Ha,,  9. 

240.  iy)  Id. 

(w)  .Sloper  V.  Fish,  2  V.  &  B.,  145;  Blosse  («)  Smith  v.  Death,  .i  Mad.,  371. 

(a)  Lowes  V.  Lush,  14  Ves.,  547. 

'  Right  of  (Jotcer  as  an  incumbrance.'\  The  vendor  agreed  to  convej',  free  of 
all  iucumbrances.  Held,  that  the  vendor  was  not  obliged  to  accept  the  prop- 
erty, incumbered  with  an  outstanding  inchoate  right  of  dower.  Shearer  v. 
Ranger,  22  Pick.,  447;  Smith  v.  Connell,  32  Me.,  126;  Heimburgh  v.  Ismay, 
35  N.  Y.  Sup.  Ct.,  35;  Prescott  v.  Truman,  4  Mass.,  629;  Henderson  v.  Hen- 
derson, 13  Mo.,  152;  Holmes  v.  Holmes,  12  Barb.,  137;  contra,  see  Obermyce 
V.  Oberty,  17  Ohio,  71;  ]\Ianson  v.  Brimfield  Manuf'g  Co.,  3  Mason,  855;  Blair 
V.  Rankin,  11  Miss.,  440.  Rawle  on  Covenants,  says,  pages  138,  139:  ''It  is 
one  of  the  best  settled  principles  of  the  law  of  vendor  and  purchaser,  that,  as 
a  general  rule,  the  right  of  the  latter  to  a  title,  clear  of  all  claims  whatever, 
present  and  future,  fixed  or  contingent,  is  one  of  which  he  cannot  be  deprived 
but  by  his  own  acts.  It  is  a  right,  as  has  been  often  observed  by  the  greatest 
equity  judges,  given  by  the  law,  and  not  springing  from  the  contract  of  the 
parties." 

Doubtful  tith  need  not  he  accepted  ]  If  a  reasonable  objection  is  found  to  exist 
against  the  title  to  real  propsrtj",  specific  performance  will  not  be  decreed  against 
the  vendee.  If  there  is  a  cloud  on  the  title,  rendering  it  doubtful,  he  need  not 
take  the  property.  Vauconner  v.  Bliss,  11  Ves.,  458;  Howarth  v.  Smith,  6 
Sim.  161;  Dutch  Church  v.  Mott,  7  Paige's  Ch.,  77;  Bartlett  v.  Blanton,  4  J. 
J.  Marsh.,  426;  Starncs  v.  Allison,  2  Head  (Tenn.),  221;  Shapland  v.  Smith,  1 
Bro.  C.  C,  75;  Mullins  v.  Triudcr,  L.  R.,  10  Eq.,  449;  Sloper  v.  Fish,  2  Ves. 
«&  Bea.,  145;  Collier  v.  McBlau,  L.  R,  1  Ch.,  81;  Sohier  v.  Williams,  1  Curtis 


WANT    OF   A    GOOD    TITLE.  433 

(1)  Where  tlie  probability  of  litigation  ensuing  against 
the  purchaser  in  respect  of  the  matter  in  doubt  is  considera- 
ble, or,  as  it  was  put  by  Alderson,  B.,(^)  where  there  is  "'a 
reasonable  decent  i)robability  of  litigation."  The  court,  to 
use  a  favorite  expression,  will  not  compel  the  purchaser  to 
buy  a  lawsuit. (c) 

(2)  Where  there  has  been  a  decision  by  a  court  of  co- 
ordinate jurisdiction  adverse  to  the  title  or  to  the  principle 
on  which  the  title  rests,  though  the  court  thinks  that  de- 
cision wrong.  (fZ) 

(3)  Where  there  has  been  a  decision  in  favor  of  the  title 
wliicli  the  court  thinks  wrong.  (^) 

(4)  Where  the  title  depends  on  the  construction  and  legal 
operation  of  some  ill-expressed  and  inartificial  instrument, 
and  the  court  holds  the  conclusion  it  arrives  at  to  be  open 
to  reasonable  doubt  in  some  other  court. (/') 

(6)  In  Cjttell  V.  Corrall,  4  Y.  &  C,  Ex.,  237  (d)  Per  Lord  Romilly,  M.  R.,  in  Mullings 

(c)  PriCi*  V  strange  6  Ma<1.,  159,165;  Sharp  v.  Trlniter,  L.  R  10  Eq  ,  454. 

V.  Adcock.  4  Rii88..  374;  Heseltlne  v.  Sim-  (e)  Id. 

mons.G  W.R  ,'268;  Pepler  v.  White,  33  Beav  ,  ( /")  Per  James,  L.  J.,  in  Alexander  v.  Mills, 

403.    consider  Potter  v   Parry,  7  W.  R  ,  182;  L.R.  6  Ch.,  132. 

Burnell  v.  Firth,  15  W.  R.,  546. 

C.  C,  470;  Seymour  v.  Delancy,  Hopk.'s  Ch.,  436;  S.  C,  5  Cow.,  714;  Jarraan 
V.  Daviss,  4  T.  B.  Mon..  115;  Hightower  v.  Smith,  5  J.  J.  Marsh..  542;  Beck- 
with  V  Korms,  6  B.  IMon.,  •222;  iSturtevaut  v.  Jaques,  14  Allen,  523;  Swayne 
V.  Lyon,  67  Pa.  St.,  486;  Young  v.  Rothlare,  1  C.  E.  Green,  2-24;  Powell  v. 
Connant,  33  Mich.,  396;  Griffin  v.  Cunningham,  19  Gratt.,  571;  Lowrey  v. 
Muldron.  8  Rich.'s  Eq.,  241;  Butler  v.  O'Hear,  1  Des.'s  Eq  ,  382;  Collins  v. 
Smith,  1  Head  (Tenn.),  251;  Littlefield  v.  Linsley,  26  Tex.,  353;  Snyder 
V.  Spalding,  57  111.,  480.  For  a  most  instructive  case,  setting  out  the  defects 
which  will  induce  a  court  of  equity  to  refuse  the  vendor  aid  in  a  case  where 
there  is  doubt  in  relation  to  title.  See  Dalzell  v.  Crawford,  1  Pars.  Sel.  Cas., 
37.  Baron  Park  said,  in  Cadwallader  v.  Pierce,  11  Jur.,  132:  "This  is  not  the 
only  case  in  which  courts  of  law  are  called  on  to  determine  questions  appertain- 
ing to  courts  of  equity.  Where  a  man  sells  an  estate,  we  are  called  on  to  say 
whether  the  title  he  offers  is  a  good  one  both  at  law  and  in  equity,  and  the 
point  before  us  in  such  cases  is,  can  such  good  title  be  made?"  Malins,  V.  C, 
said,  in  Bell  v.  Holtly,  L.  R.,  15  Eq.,  178:  "Where  doubtful  cases  of  con- 
struction arise,  whether  on  an  act  of  Parliament  or  the  words  of  an  instrument 
or  a  will,  it  is  the  duty  of  this  court  to  remove  that  doubt  by  deciding  it;  and 
instead  of  feeling  a  doubt  whether  other  judges,  at  other  times,  may  think  in 
the  same  way  with  them.  I  consider  it  the  duty  of  the  court  to  assume  that 
that  which  a  competent  tribunal  has  at  one  time  decided,  will  be  followed  at 
future  times,  and  that  that  which  judges  at  the  present  time  think  right,  is  to 
be  assumed  judges  of  eqttal  competency  in  the  future  will  think  right  also." 
Lord  Eldon  said  in  Vancouver  v.  Bliss,  11  Ves.,  465,"  he  recollected  the  period 
when  it  was  the  office  of  the  court  to  decide  whether  the  title  was  good  or  not. 
and  it  was  thought  better  that  the  dry  rule  should  prevail  that,  if  the  title  was 
good,  the  purchaser  should  take  it,  than  that  the  court  should  speculate  upon 
the  point  whether  there  was  more  or  less  difficulty  in  the  title,  and  say  in  one 
case  he  should  take  it,  in  another  he  should  not.  The  old  course  was,  that  if 
the  parties  were  afraid  of  the  decision,  they  appealed ;  and  had  not  a  title  abso- 
lutely indefeasible,  but  as  good  a  warranty  as  could  be  procured.    The  depart- 

28 


434       m;v  on  >i'i:('iric  rKiMoiiMANc  e  of  conikacts. 

(.'))  W licit'  tlie  title  rests  on  ;i  i)resunipti(>n  of  fact  of  such 
a  kind  that  if  the  question  of  fact  were  before  a  jury,  it 
■\voukl  he  tl»e  duty  of  the  judge  not  to  give  a  clear  direction 
in  favor  of  the  fact,  but  to  leave  the  jury  to  draw  their  own 
conclusion  from  the  evidence. 

To  this  ])iin('ii)le  we  may  probably  refer  many  of  those 
cases  where  a  doubt  as  to  a  fact  has  prevailed  ;  as  where  the 
title  dei)ended  upon  proof  that  there  was  no  creditor  who 
could  take  advantage  of  an  act  of  bankruptcy  committed 
by  the  vendor:(/7)  or  where  the  title  dei)ended  upon  the  ab- 
sence of  notice  of  an  incumbrance,  of  which  absence  the 
vendor  produced  some  evidence, (7^)  or  upon  the  i)resump- 
tion  arising  from  mere  possession. (/) 

And  it  may  be  noticed  that  the  court  will  not  allow  a  vol- 
untary settlor  to  force  on  an  iinwilling(y)  x>urchaser  a  title 
depending  on  the  invalidity  of  the  settlement. (A")  "One 
difficult}^  in  the  way  of  assisting  him,"  said  Lord  Eldon, 
"is,  that  he  has  no  equity  to  defeat  the  act  which  he  has 
done  himself;  but  another  consideration  which  has  weighed 
in  such  cases  is,  that  if  you  compel  a  purchaser  to  take  an 
estate  at  the  instance  of  such  a  man,  you  cannot  be  quite 
sure  that  there  may  not  have  been  some  intermediate  acts, 

(g)  T.owps  V.  l.ush,  14  Ves.,  547.  (k)  Smith  v.  Garlani,  3  Mer.,  12.3;  Burke  v. 

(ft)  Freer  v   Hesse,  4  [)e  G.  M.  &  G.,  495.  Dawson,  St  Leon.  Vend.,  ^92;  Clarke  v.  \Vi  - 

(i)    Kj  Ion  V.  Dieken,  4  Pri  .  3i  3.  lott,  L.  K.  7  Ex.,  3  3. 
U)  Peter  v.  Mcolls,  L.  R.  11  Eq.,  391. 

ure  from  that  course  has  been  attended  with  great  mischief.  Whenever  a 
contract  is  made  for  tlie  purchase  of  land,  though  no  doubt  has  ever  l:)een 
entertained  upon  the  title,  no  one  thinking  of  disputing  it,  if  the  purchaser  has 
a  good  bargain,  he  overlooks  all  these  objections;  but  if  he  finds  he  cannot  sell 
the  estate  as  we.ll  as  he  wi-sbed,  or  cannot  enjoy  it  to  his  satisfaction,  the  first 
thing  is  that  the  al)8tract  goes  to  some  one  for  the  express  purpose  of  finding 
out  objections,  and  opinions  are  given  on  both  sides.  I  feel  great  concern  for 
the  owners  of  this  sort  of  property.  The  consequence  is,  not  only  the  misery 
arising  from  the  uncertainty  whether  that  which  they  have  been  enjoying  with 
happiness,  and  upon  which  their  families  are  to  subsist,  is  their  property;  but 
it  is  an  invitation  to  all  who  may  fancy,  that  they  have  an  interest  in  it,  to 
make  an  attack.  There  cannot  be  much  doubt,  therefore,  which  is  the  best 
rule."  See,  also,  Jervoise  v.  Duke  Northumberland,  1  J.  &  W.,  568.  Battin 
on  Specific  Performances,  page  117,  says:  "This  anomaly  in  the  practice  of 
courts  of  equity,  which  refuse  to  decide  whether  the  title  is  good  or  bad,  and 
only  decide  tfiat  there  is  doubt  about  it,  and  which  refuse  to  force  the  pur- 
chaser to  take  the  title  if  there  is  a  cloud  upon  it,  incidentally  arose  from  their 
considering  that  there  was  a  remedy  at  law,  and  that  the  jurisdiction  was,  there- 
fore, discretionary.  But  the  doctrine  seems  now  to  be  too  well-estabhshed  to 
allow  us  to  confine  its  application  to  those  cases  where  relief  can  be  obtained  at 
law.  It  is  said  that  the  court,  knowing  that  its  decision  on  the  title  could  not 
bind  anybody,  would  not  force  the  purchaser  to  take  a  title  which  it  could  not 
waiTant  to  him.  But  this  obviously  supposed  an  uncertainty  as  to  tlie  law, 
which  ought,  in  a  perfect  system  of  jurisprudence,  never  to  be  presumed." 


WANT    OF   A   GOOD   TITLE.  435 

Avliicli,  by  matter  ex  iDost  facto,  may  have  made  the  settle- 
ment good  which  in  its  origin  was  not  good.''(0 

(6)  Where  the  circnmstances  amount  to  j)resumptive 
{though  not  necessarily  conclusive)  evidence  of  a  fact  fatal 
to  the  title;  as,  e.  g.,  that  the  exercise  of  a  power  nnder 
which  the  vendor  claimed  was  a  fraud  upon  the  power.(w.) 

§  871.  On  the  contiary  it  is  conceived  that  the  court 
would  consider  the  title  not  to  be  doubtful  in  any  of  the 
following  cases,  viz.: 

(1)  Where  the  probability  of  litigation  ensuing  against 
the  purchaser  in  jespect  of  the  doubt  is  not  great,  the  court, 
to  use  Lord  Haidwicke's  language  in  one  case,  ''must  a'ov- 
•ern  itself  by  a  moral  certainty,  for  it  is  impossible,  in  the 
nature  of  things,  there  should  be  a  mathematical  certainty 
of  a  good  title.  "(vO  Accordingly,  in  the  case  before  Lord 
Hardwicke,  his  lordship  enforced  specific  j^erformance, 
although  there  was  a  reservation  of  mines,  because  the 
court  was  satisfied  that  there  was  not- subject  matter  for  the 
reservation  to  act  upon,  or  that  all  legal  right  to  exercise  it 
had  ceased. (o)  And  in  another  case.  Lord  Romilly,  M.  R., 
forced  on  an  unwilling  purchaser  a  title  depending  on  the 
validity  of  a  i^urchase  by  a  solicitor  from  his  client,  on  proof 
of  the  validity  of  the  transaction,  though  given  in  the  ab- 
sence of  the  client,  who.  it  was  urged,  might  possess  other 
evidence  and  ultimately  set  aside  the  sale.(^;) 

(2)  Where  there  has  been  a  decision  adverse  to  the  title 
by  an  inferior  court,  which  decision  the  suj)erior  court  holds 
to  be  clearly  wrong,  (g) 

(3)  AVhere  the  question  depends  on  the  general  law  of  the 
land.  "As  a  general  and  almost  universal  rule,  the  court 
is  bound  as  much  between  vendor  and  purchaser,  as  in  every 
other  case,  to  ascertain  and  so  determine,  as  it  best  may, 
what  the  law  is,  and  to  take  that  to  be  the  law  which  it  has 
so  ascertained  and  determined. "(r) 

(4)  Where  the  question,  though  one  of  construction,  turns 

(0  In  Johnson  v.  Legard.  T.   &  R.,  294.  Seaman  v.  Vawdrey,  16  Ves.,  393;  Martin  v. 

See,  too,  Clarke  v.  Willott,  L    R.  7  Ex.,  313.  Cotter,  3  Jon.  &  L.,  496. 

For  an  instance  of  a  decree  for  specific  per-  (,p)  spencer  v.  Topham,  22  Beav  ,  573    See, 

formance,  notwithstanding  a  previous  vol-  too,  Falkner  v.  Equitable  Reversionary  So- 

iintary  grant,  at  the  suit  of  a  purchaser,  see  ciety,  4  Drew..  3.i2. 

Rosher  v.  Williams,  L.  R.  20  Eq.,  210.  (g)  Supra,  §  S67. 

\m)  Warde  v.  Dixon, 28  L.  J.  Ch.,315;  S.  (r)  Per  James,  L.  J.,  In  Alexander  v.  Mills, 

C,  s.  n.,  Warde  v.  Dickson,  7  W.  R.,  148.  L.  R.  6  Ch.,  131,  132;  Forster  v.  Abraham,  L. 

(re)  In  Lyddall  v.  Weston,  2  Atk.  R.  17  Eq.,  351;  Osborne  to  Rowlett,  13  Ch. 

<o)  See,  as  to  this  case,  per  Grant, M.R.,  In  D.,774, 


430         FllY  UN  SPKflFlC  l>EKFt)HMANCE  OF  CONTRACTS. 

on  a  general  rule  of  construe rion,  unaffected  by  any  special 
context  in  the  instrument,  and  the  court  is  in  favor  of  the 

title,  (.s) 

(5)  AVhere  the  title  depends  on  a  presumption,  provided 
it  be  such,  that  if  the  question  were  before  a  jury,  it  would 
be  tht-  duty  of  the  judge  to  give  a  clear  direction  in  favor 
of  the  fact,  and  not  to  leave  the  evidence  generally«to  the 
consideration  of  the  jury.(0  So  where  the  recital  of  deeds 
raised  the  presumption  that  they  contained  nothing  adverse 
to  the  title,  the  mere  loss  of  the  deed,  where  the  title  was 
fortified  by  sixty  years'  undisputed  possession,  was  held 
not  to  create  a  reasonable  doubt  ;{u)  and  so  again,  where 
the  validity  of  a  title  depended  on  no  execution  having  been 
taken  out  under  certain  judgments,  between  the  27th  Sep- 
tember, 17^^*9,  and  the  23d  May,  1770,  and  nothing  was  shown 
to  have  been  done  which  could  be  referred  to  sucli  an  exe- 
cution, the  court  considered  the  title  good.(«)  To  this  head 
may  perhaps  be  referred  the  fact  that  the  court  will  (except 
at  the  suit  of  the  settlor[?o])  compel  specific  performance  of 
a  title  depending  on  the  invalidity  of  a  voluntary  convey- 
ance as  against  a  purchaser  for  valuable  consideration  with- 
out notice, (ic)  the  court,  as  it  seems,  acting  on  the  presump- 
tion of  the  conveyance  not  having  been  rendered  valid  by 
subsequent  dealings.' 

(s)  Radford  v.  Willis,  T,.  R.  7  Ch.,  7.  (r)  Cauhton  v   Macklew,  2  Sim.,  ■242. 

(t)  Emery  v.  Grococb,  6  Mad.,  54;  Barnwell  (w)  Supra,  §§  387,  448,  870. 

V  Harris,  1  Taunt ,  430.  (x)  ButterfleUl    v.    Heath,  15  Beav.,  408  ; 

(M)  Prosser  v.  Waits,  6  Mad.,  59;  Magennis  Buckle  v.  Mitchell,  18  Ves.,  100. 
V.  Fallon,  2  Moll.,  561. 


^  Mdrketabh  title,  specific  performance.'\  A  court  of  equity  will  not  decree 
specific  performance,  unless  a  marketable  title  can  be  given.  It  is  not  enough 
that  a  court  might  consider  the  title  good  Swayne  v.  Lyon,  67  Pa.  St.,  436; 
Littlefield  V.  Fiusby,  26  Texas,  353;  Liulcons  v.  Coo'per,  2  W.  Ya.,  67;  Speakman 
V.  Forepaugh,  44  Pa.  St  ,  363;  Freetley  v.  Barnhart,  51  Pa.  St.,  279;  Butler  v. 
O'Hare,  1  Dessau. 's  Eq.,  382 ;  Thompson  v.  Dalles,  5  Rich.  Eq..  370;  Powell  v. 
Conanti  33  Mich.,  396.  The  rule  is  slightly  qualified  in  Vreeland  v.  Blauvelt, 
23  N.  J.  Eq.,  483. 

Construction  of  tlie  words  '■'good  deed,''  or  its  equii'aleni.~\  A  covenant  to  exe- 
cute and  deliver  a  good  and  sufficient  deed,  means  an  operative  conveyance,  or 
one  that  transfers  a  good  and  sufficient  title  to  the  land.  Where  the  contract  is 
to  o-ive  a  "good  deed,"  or  where  equivalent  words  are  used,  it  is  not  enough 
that  a  deed  with  proper  warranty  is  executed  in  legal  form.  In  order  to  sat- 
isfy the  language,  the  deed  must  be  good  and  sufficient  to  convey  a  title  to  the 
land,  both  in  form  and  substance,  Clute  v.  Robinson,  2  Johns.,  413;  Everston 
V.  Kirkland  4  Paige's  Ch.,  638;  Burwell  v,  Jackson  9  N.  Y..  535;  Mead  v.  Fox, 
6  Cush.,  202;  Mitchell  v.  Hagen,  4  Conn.,  495;  Taft  v.  Kes.sel,  16  Wis.,  273; 
Morgan  v.  Smith,  11  111.,  199;  Tindell  v.  Conover,  1  Zab.,  654;  Jones  v.  Gard- 
ner, 10  Johns..  266;  Judson  v.  Wass,  11  Johns.,  528;   Traver  v.  Holstead,  23 


WANT   OF   A   GOOD   TITLE.  437 

(6)  Where  tlie  doubt  raised  rests  not  on  proof  or  pre- 
sumption, but  on  a  suspicion  of  mala  fides.  This  point  has 
.given  rise  to  some  diversity  of  opinion.  In  Hartley  v. 
Smith, (?/)  the  title  depended  on  a  deed  of  grant  of  chattels, 
containing  a  stipulation  for  the  grantor  s  continuing  condi- 
tionally in  possession  ;  and  Leach,  V.  C,  withont  deciding 
whether  such  a  deed  was  in  itself  fraudulent  and  an  act  of 
bankruptcy,  declined  to  force  the  title  on  the  purchaser,  on 
the  ground  that  its  validity  depended  on  its  being  made 
upon  good  consideration  and  bona  fide,  and  that  these  were 
■circumstances,  the  existence  of  which  the  purchaser  had  no 
adequate  means  of  ascertaining.  "My  opinion,  therefore, 
is,"  said  the  vice-chancellor,  "  that  a  court  of  eqnity  onght 
not  to  compt-1  this  purchaser  to  accept  this  title  ;  because 
assuming  the  deed  not  to  be  fraudulent  ex  facie,  it  still  may 
be  avoided  by  cii'cnmstances  extrinsic,  Avhicli  it  is  neither 
in  the  power  of  the  purchasers  or  of  this  court  to  reach. "(2) 

(2/)  Buck,  Bankr.  C  ,  36S  (s)  P.  380.    See,  also,  Boswell  v.  Mendham, 

6  Mad.,  373. 

lud  ,  6'!;  Carpenter  v.  Bailey,  17  Ind.,  244;  Pomerov  v.  Drury,  14  Barb.,  424; 
Fletcher  V.  Button,  4N  Y.,  400;  Story  v.  Conger,  H6  N.  Y.,  (iT3;  Swan  v. 
Drury.  22  Pick.,  48S;  Gilchrist  v.  Bine,  1  Den.  ct  Bart.  Eq  ,  84(i:  Little  v. 
Paddleford,  13  N.  Y..  1G7;  Watts  v.  Waddle,  1  M'I.ean,  'iOH;  Lawrence  v. 
Dole,  11  Vt.,  541);  Greenwood  v.  Ligon,  10  Sni.  &  Marsh.,  ()I5;  Dodd  v.  Sey- 
mour, 21  Conn.,  480;  Pugh  v.  Chesscldine.  11  Ohio.  109;  Hunter  v.  O'Neil,  12 
Ala.,  37;  Freemaster  v.  May,  13  Sm.  &  Marsh.,  275;  Cunningham  v.  Sharp, 
11  Humph,  120;  Dearth  v.  Williamson,  2  Searg.  &  Rawle,  41)8;  Cowell  v.  Hamil- 
ton, 10  Watts,  415;  (  hristiau  v.  Cabell.  22  Gratt.,  82;  Tarwater  v.  Davis,  2 
Eng.  Ark.,  153;  Toll  Bridge  Co.  v.  Yreeland,  3  Green  Ch.,  132  Contm.  Par- 
ker V.  Parmlee,  20  John.,  132,  where  it  was  held,  that  a  covenant  to  convey 
"  by  a  good  warranty  deed  of  conveyance"  refers  to  the  instrument,  and  not 
to  the  title,  and  is  satisfied   by  the  execution  of   a  warranty  deed,     "^ee,  also, 

■Gazeley  v  Price,  Ui  John.,  2l>"7;  Barrow  v.  Bispham,  (i  HaKsh.,  119;  Brown  v. 
Covilland.  6  Cal  ,  566;  Tinney  v.  Ashley,  15  Pick  ,  552;  Hill  v.  Robert,  16 Me., 
lf)4.  In  Delavan  v.  Dimcan,  49  N.  Y  ,  487,  the  court  says  that  Gazeley  v. 
Price,  and  Parker  v.   Parmlee,  were  both  overruled  by  the  Court  of   Appeals 

.(the  highest  court  in  New    ^  ork)    in  Burwell   v.  Jackson,   supra.     "In  this 

'Case  it  was  distinctly  held  that  a  covenant  to  give  a  good  and  sufficient  con- 
veyance of  land  would  be  performed  only  by  givii  g  a  deed  that  would  vest  in 
the  grantee  an  unincumbered  title  to  the  premises."  Brown  v.  Gannon,  14 
John,  276  is  an  instructive  case  as  explaining  the  words  "  the  title  to  be  a  good 
and  sufficient  deed."  In  Vermont  it  has  been  held  that  where  the  grantor  cove- 
nanted '-to  give  a  good  and  warranty  deed,"  that  this  language  did  not  refer  to 
the  title,  but  did  refer  to  the  instrument,  and  that  the  contract  was  not  broken 
by  the  inability  of  the  vendee  to  convey  free  of  incubrance.  Joslyn  v.  Tay- 
lor, 33  Vt.,  470;  Preston  v.  Whitcomb,  11  Vt..  47. 

"  The  title  on  inventigntion  to  be  satinfar.tory  "]  Where  thi.s  languat-e  was  used 
in  a  written  contract  for  the  sale  of  land^  and  the  vendee  gave  notice  that  he 
was  not  satisfied  with  rhe  title  Held,  t^'at  an  agreement  on  the  part  of  the 
vendee  to  perfect  the  title  did  not  make  the  case  one  for  specific  performance. 

"Taylor V.  Williams,  45  Mo.,  80;  see,  however,  Lord  v.  Stephens,  1  Y.  &  C. 
Ex..  222. 


488         FItY  ox  SPKCIFIC  PKHFOPvMAXrf:  OF  COXTUACTS. 

vj  ST'I.  This  dictum  seems  to  allow  no  room  to  the  pre- 
sumption of  ho)i(i  Jules,  and  to  make  the  jjossibilit}^  of  fraud 
in  extrinsic  facts  a  sufficient  objection  to  the  title:  accord- 
iniily.  it  has  not  Ix'en  accepted  in  all  its  generality.  It 
"must  not,"  said  Alderson  J-5.  of  this  dictum,  ''be  pushed 
to  the  farthest  extent  which  the  words  will  i)ossibly 
bear ;'"(«)  and,  accordingly,  that  judge  lield  good  a  title 
under  a  deed  which  extrinsic  evidence  might  hav^^-  shown  to 
be  invalid,  as  comprising  all  the  property  of  the  grantor,  or 
as  made  to  give  a  fraudulent  preference  to  some  creditors 
over  others,  or  as  nuide  in  contemi)lati(m  of  bankruptcy, 
because  there  was  no  ground  apparent  for  nudving  any  of 
these  objections  to  it.(//) 

§  873.  In  Green  v.  Pulsford(c)  the  vendor  claimed  under 
an  appointment  made  by  a  husband  and  wife  to  their  eldest 
daughter,  under  a  settlement  gave  them  successive  life 
estates,  with  remainder  to  their  childi-en  as  they  slioidd. 
appoint,  and  in  default  of  appointment  between  such  chil- 
dren ;  and  the  parents  had  incumbered  their  life  interests, 
and,  shortly  after  the  appointment,  they  and  their  daughter 
executed  a  mortgage :  these  were  circumstances  which  might 
create  in  everyone's  mind  a  suspicion  that  the  appointment 
was  a  fratid  on  the  settlem-nt,  and  that  was  strt^ngthened 
by  a  notice  from  a  younger  son  to  the  purchaser  not  to  com- 
plete, and  that  the  appointment  was  such  a  fraud  ;  but 
inasmuch  as  the  notice  alleged  no  facts,  and  gave  no  infor- 
mation not  apparent  on  tlie  abstract,  and  was  not  followed 
up  by  any  proceedings,  the  court  considered  that  the  title 
was  not  open  to  any  sufficient  doubt,  and  forced  it  on  the 
purchaser.  In  an  earlier  case,  where  there  were  somewhat 
similar  grounds  for  suspecting  the  bona  fides  of  an  appoint- 
ment. Lord  Eldon  pursued  the  same  course,  and  enforced 
specific  j)erformance.(r^) 

§  874.  In  another  case,  the  purchaser  showed  that  the 
title  was  made  under  a  sale  by  newly  appointed  trustees  to 
a  person  who  had  previously  bought  the  interest  of  the  ten- 
ant for  life,  and  who,  eighteen  months  afterwards,  made  a 

(a)  4  Y.  &  C.  Ex  .  236.  also.  Grove  v   Bastard,  2  Ph..  619;  S.  C,  1  De 

(h)  (;att»-,ll  V.  (jorrall,  4  X.  &  C.  Ex.,  228.  »J.  M    &  ti  ,  G9;  and  Re  Huish'a  Charity,  L.. 

(r)  2  Hf-av..  71.  H.  10  Kq.  5. 
(d)  M  Queen  v.  Farquhar,  U  Ves.,  407.    See, 


WANT    (»!••    A    (;o«)D    Till.?:.  4:^0 

profit  on  liis  i»iirchase  :  but  the  court  lu-ld  ili.-r-  rinuui- 
stnncHS  i  in  ma  terial .  (/') 

55  ^7Si.  A^ain,  a  puirliasrr  is  not  ••fiiillfd  in  t lie  absence 
of  circmustances  of  suspicion  to  refuse  a  till*'  nuele  under 
a  will,  because  tlie  will  has  not  l)een  jirovt-d  aixaijist  the 
ht'ii-  or  lit'  dot's  not  join  :(_/')  so  that  wlifrc,  ilurinu'  a  lili^T'i- 
tion  of  thirteen  ycar^.  no  (juestion  had  bfcn  iai^<'d  iin- 
])«'achin,u"  .the  validity  of  the  will,  and  a  |tei-son  who  hail 
claimed  uiidfi'  anotlifi-  will  ha<l  w  it  lnhau  ii  from  all  conten- 
tion against  the  one  hist  mentioui'il.  l/)i'd  Hatlierlcy  ( tlu*ii 
Wood.  y.  ('. )  con4>elled  the  purchaser  to  take  a  title  un<l'-r 
the  will.! 7)' 

sj  S7(>.  Where  the  court  comes  to  the  conclusion  that  a 
irood  title  can  be  made  it  litMu-rally  onlers  t!ic  jturchascr  to 
l)ay  tlie  costs  of  the  litigation,  so  as  to  assure  his  title  ;ind 
show  that  the  court  entertains  no  doubt  ujton  it.i//) 

s5  H77.  llecent  legislation  affords  machineiy  under  whi(di, 
in  some  cases  at  least,  the  i)ers<)n  making  an  adverse  claim 
may  be  brought  into  the  liiigatioii.  an<l  that,  which  in  his 
absence  might  have  lemained  doubtful,  may  receive  judicial 
detennination.  It  seems  worthy  of  consideration  whether 
this  jtrinciple  could  not  be  further  extended." 

J;  S*7^».  By  the'  land  translV-i-  act,  187.")  C^S  and  ;'.!>  Vict.,  c. 
87),  s.  9:^,  it  is  enacted  that  "  wliei-e  a  suit  is  instituted  for 
the  specilic  perforinance  of  a  contract  i-elating  to  registered 
land  or  a  legisteied  <-haige,  the  court  having  coi:ni/.ance  of 
such  suit  may  by  summons,  or  by  such  other  moile  as  it 
de^ms  expedient,  cause  all  oi'  any  p;iriies  who  have  regis- 
tered estates  or  rights  in  such  land  (»r  charge,  or  have 
entered  up  notice^,  cautions,  oi'  inhibitions  against  the 
same,  to  ap}ie;ii'  in  such  suit  and  show  cause  why  such  c(»n- 

(6)    Al«x;in.l  r  V.  MilN.  I,.  Ii.  C  Ch  .  1>4.  let',  KJeh.  r>..  T'.ts;  «-r.  Ml.»i..li«  v.  <  •.rlM-t«,»4 

(/•iColtoii  V    WiNon,  :{  r    'ViiiH.   I!K»;    p-r  U.-iv,  :{si.  .<.«.';    U  »•  I   v    I.  T  I    H  irrlnj{t  >n, 

T.onl  K  '[on  in  M..rii-(..t,  v.  Aniol.l.  Ill  Va  ,  I..  K.  (J  K.).,  J.'4;    Ao.U  v.  tlyl-  .  10  »V     U.. 

67i).  \Vi!.|  l;ill  V.  \i\Mi    IT  H.-iv.,  It;(i  :n  I      In   IC.pII -nl  v    *Vi||ii.|,    K  T  Cti..  7.  Ill 

(.7)  M'CuliiH-n  V   (irt'Kory. :{  K   Ji..1.,\i.  iii<' inin-hHifr  was  "  CM;u»o<i''  lr«in  iMiyiniC 

(ht  Per  Jcsdcl,  M.  U.,  In  OjHoriie  l>  How-  oml: 


'  See  to  this  effect,  tlie  ruse  of  Huller  v  O'llenr,  1  Dessiiii.,  3S2.    . 

-  Hut  a  title  miiy  he  (loulitfiii,  l)cc)iii>;e  it  (Icpciidt  on  ii  <li)ulitful  iiilerprela- 
tioii  of  a  will,  if  all  parties  wlm  may  i)o  interesli-il  in  llu' ft^ljili-  are  ii<it  it-iuii«l 
l>v  the  decree;,  aiul  therefore  will  ii<»t  lie  forectl  (ipmi  a  pnrrli.is.  r.  S«ihier  v. 
Williams.  1  Curtis'  V.  C.  Hep.  -171). 

Where  will  pn-siMits  diniciilt  tpH'stions  df  (•(»iistru<tion  its  lo  lillc  it  is  tuilitT 
of  (listTction  with  court  as  to  wiifllu-r  it  will  ii>'np»l  ^pciilli-  p.Tf.irm  mev  nf  a 
coiitrael  for  sale  of  l.in.l.     Kelso  v.  Loullar.l.  s.')  .N".  V  .  ITT. 


440        FKY  ox  .SPKCIFIC  rKKFOU:^!  AN(  E  OF  CONTRACTS. 

tract  slioiild  not  be  specifically  performed,  and  tlie  court 
may  diivct  that  any  order  made  in  such  suit  shall  be  bind- 
ing on  such  parties  or  any  of  them."(0 

^  H7ft.  Aiiain.  by  the  rules  of  the  Supreme  Court,  wliere 
it  appears  to  the  court  or  a  judge  that  a  question  in  the 
action  should  be  determined,  not  only  as  between  the  plain- 
tiff and  defendant,  but  as  between  the  i)laintiff,  defendant, 
and  any  other  person,  or  betwHen  any  or  eithei-  of  them,  the 
court  or  a  judge  may,  on  notice  being  given  to  such  last- 
mentioned  person,  make  such  order  as  may  be  proper  for 
having  the  question  so  determined. (,/) 

§  880.  In  a  case  wliere  parties  stated  facts  in  the  form  of 
a  special  case,  and  required  the  opinion  of  the  court  whether 
on  these  facts  a  good  title  was  shown,  the  court  declined  to 
consider  the  question  of  the  title  being  doubtful :  it  con- 
fined itself  to  the  question  asked,  whether  or  no  a  good  title 
was  shown. (A:)' 

(i)  See  infra.  §  HIO.  ''ase  under  Sir  Geo  Turnnr's  Art  (13  and  14 

(j)  Old.  XVI,  r.  17.     ser,  too,  Rules  17,21,  Vift ,  c.  3.)),  ss.  2,  18    the  procedure  under 

of  the  pani."  Order,  8uprrt.*i  1()8  whi.-h  has  heen  Fup.  rseded  l>y  V'Hl  under 

{k)  Gt.vrnors  for  R.-liet  of  Poor  Widows  Ord.  XXXIV  (see  et'peiially  ru  e  1). 

of  ClerKjmen,  etc.,  v.  Sutton,  27  lieav.,  G.il,  a 

^  III  a  caKe  where  the  title  is  suspicious,  extrinsic  circumstances.']  Equity  will 
not  dt'cree  spccitic  judgment  against  a  purchaser  in  a  case  where  although  tliere 
is  no  proof  of  fraud,  yet  tliere  are  instances  connected  with  the  title  which 
would  give  a  prudent  man  cause  for  suspicion,  and  the  good  or  bad  i'aith  of  the 
transaction  depends  upon  extrinsic  circumstances.  In  Hartley  v.  Smith.  Buck's 
Banks  Gas.,  86>^,  the  vice-chancellor,  said.  "My  opinion,  therefore,  is,  that  a 
court  of  equity  ought  not  to  compel  the  purchaser  to  accept  this  title;  because 
assuming  the  deed  not  to  be  fraudulent  ex-fncie,  it  still  may  be  avoided  by  cir- 
cumstances extrinsic,  which  it  is  neither  in  the  power  of  the  purchaser  or  of 
this  court  to  reacli." 

Aft^r  possession  has  been,  occvpied  by  the  renilee.']  Both  courts  of  law  and 
equity  where  the  transaction  is  free  from  fraud,  apply  the  maxim  caveat  emptor 
to  contracts  of  purchase  of  real  as  well  as  of  personal  property,  a  purchaser 
may  in  general,  rely  on  old  deeds,  as  to  location  and  boundery.  Welsh  v.  Hall, 
66  iN  C.,  -2'd'^.  Where  the  contract  is  executory,  if  the  vendor  has  no  title  the 
vendee  may  have  a  rescission:  but  if  the  agreement  has  been  extended,  in  order 
that  a  court  of  equity  may  grant  relief  to  the  purchaser,  or  restrain  the  col- 
lection of  the  purchHse  money,  eviction  or  fraud  must  be  averred  and  proved. 
Patton  V.  Taylor.  7  How.,  13H;  Campbell  v.  Medbury,  .5  Bissell.  3:^).  The  ven- 
dee of  land  in  possession,  soiigbt  to  resist  the  payment  of  the  purchase  money, 
on  the  ground  that  his  vendor  could  not  make  a  good  title;  the  paramount  title 
being  in  a  third  party.  Held,  that  he  must  show  affirmiitively  the  existence  of 
such  paramount  title,  and  that  the  evidence  must  be  clenr  and  satisfactory. 
Cantrel  v.  Mobb.  63  Ga.,  19];  Sawyer  v.  Sledge,  55  Ga  ,  l.')2. 

Iifumbran/^es  existing  against  real  proj)ertg  sold  ]  Where  real  property  has 
been  sold  free  from  incumbrances,  a  purchaser  need  not  receive  his  deed,  and 
pay  his  money  while  incumbrances  ext^t  against  the  property.  A  court  of 
equity  will  not  compel  him  to  rely  on  the  personal  responsibility  of  the  vendor, 
but  will  .suspend  the  payments  of  the  purchase  money  until  the  incumi-rances 
are  removed,  if  this  is  not  done  after  a  reasonable  time  the  contcact  will  be  re- 


WANT    OF    A    GOOD   TITLE.  441 

scinded.  Bisliop  v  Newton,  20  111.,  175;  Rindley  v.  Gray,  G  Ired.'s  Eq.,  445; 
Shaw  V.  Viiiceiil.  6tN.  i\,  690;  Wallace  v.  McLaughlin,  57  111.,  53.  In  David- 
son V.  Perrine,  22  N.  J.  Eq  ,  87,  where  the  vendor  filed  a  bill  for  specific  per- 
formance, that  the  vendee  should  elect  either  to  accept  such  a  title  as  the  vendor 
was  able  to  convey,  or  abandon  the  contract,  and  restore  the  pos.session 

lYme  within,  icliicli  the  vendor  muj^t  be  prepared  to  make  a  good  title  ]  In  order 
that  a  vendor  may  be  in  a  position  to  envoke  the  aid  of  equity  in  enforcing  spe- 
cific performance  of  a  contract  of  sale  of  real  projjerty,  he  must  show  that  in 
good  faith,  and  without  unnecessary  delay  he  has  performed  all  the  obligations 
which  devolved  upon  him;  or  that  he  is  ready  and  in  a  position  to  do  so.  King 
V.  Hamdton,  4  Pet.,  311;  Seymour  v.  Delauc  y.  G  Johns.,  Ch.,  222;  Grundy  v. 
Ford,  Litt  Sel.  Gas.,  129;  Barnett  v.  Higgins,  4  Dana,  565.  A  reasonable  dil- 
ligence  must  be  exercised  by  the  vendee  in  ascertaining  the  state  of  the  title. 
Havens  v.  Bliss,  26  N.  J.  Eq.,  363  The  vendor  will  ^ot  be  deprived  of  his 
right  to  enfo'-ce  the  contract  specifically,  by  mere  delay,  unless  it  be  shown 
that  such  delay  has  been  unreasonable  and  without  excuse;  and  it  is  out  of  the 
power  of  the  court  to  place  the  respective  parties  in  the  same  position  they 
would  have  occupied  had  the  contract  been  carried  out  before.  McKay  v. 
(Harrington,  1  McLean,  5i);  Cooper  v.  Brown,  2  McLean,  495;  Snyder  v.  Spaul- 
ding,  57  111.,  480.  It  appears  to  be  the  well  settled  rule  that  the  vendor  of  real 
estate  has  a  right  to  a  decree  of  specific  performance,  in  cases  where  time  is  not 
of  the  essence  of  the  original  contract,  without  showing  that  the  title  is  actually 
in  him  at  the  time  of  the  conveyance.  If  lie  is  able  to  give  a  good  title  at  the 
time  of  the  decree,  it  is  usually  sufficient.  In  Layford  v  Pitt,  2  P.  Wms  , 
629,  it  was  said  pi;r  curiam,  "  It  is  sufficient  if  the  party  entering  into  articles 
to  sell  has  a  good  title  at  the  time  of  the  decree;  the  direction  of  the  court  being 
in  all  these  cases  to  inquire  whether  the  seller  can,  not  whether  he  could,  make 
a  title  at  the  time  of  executing  the  agreement  In  the  case  of  Lord  Stowttm  v. 
Sir  Thomas  Meers,  the  Lord  Stowton,  at  the  time  of  the  articles  for  a  sale,  or 
even  wiien  the  decree  was  pronounced,  could  not  make  a  title,  the  reversion  in 
fee  being  in  the  crown.  And  yet  the  court  indulged  him  with  time  moie  than 
once  for  the  getting  in  of  this  title  from  the  crown,  which  could  not  be  effected 
without  an  act  of  Parliament  to  be  obtained  in  the  foUovvipg  session.  How- 
ever, it  was  at  length  procured  and  Sir  Thomas  Meers  decreed  to  be  the  pur- 
chaser. Indeed  it  woiild  be  attended  with  great  inconveniences,  were  decrees 
to  direct  an  inquiry  whether  the  contractor  to  sell  had,  at  the  time  of  entering 
into  such  contract,  a  title;  for  this  all  encumbrances,  and  defects  must  be  raked 
into.  Wherefore,  it  has  been  thought  sufficient  to  answer  the  end,  if,  at  the 
time  of  the  decree  or  report  the  seller  can  make  a  good  title  "  See,  also,  Hep- 
burn v.  Auld,  5  (ranch,  262;  Wilson  v.  Tappan,  G  Ohio,  172;  Mays  v.  Swope, 
8  Gratt.,  74;  Allerton  v.  .Tohn.son,  3  Sandf.  Ch..  72;  Dubose  v.  James,  McMul- 
lan  Eq.,  55;  Hepburn  v.  Dunlop,  1  Wheat.,  179;  Seymour  v.  Delaney,  3  Conn., 
445;  Cotton  v.  Ward,  3  Monr..  305;  Westall  v.  Austin,  5  Ired.'s  Eq.,  1;  Brown 
v.  Haff,  5  Paige's  Ch  ,  235;  Luckett  v.  Williamson,  37  Mo.,  388;  Moss  v.  Han- 
son, 17  Pa.  St.,  370;  Mus.selman'3  App.,  65  Pa  St.,  480;  Wmne  v.  Reynolds, 
6  Paige's'  h.,  407;  Jenkins  v.  Fahey.  73  N.  Y  ,  855.  In  Rutland  v  Brister.  53 
Miss.,  G83,  it  was  held,  that  a  party  could  contract  to  convey  land,  he  having 
at  the  time  no  title  either  legal  or  equitable  in  it;  and  that  his  obligation  was 
fulfilled  if  when  the  time  for  performance  arrived,  lie  induced  the  real  holder 
of  the  title  to  convey  to  the  vendee. 

Inabiliti/  to  nh'ain  tit/f,  go  id  defence  ]  An  action  was  brought  for  specific 
performance  of  a  contract  to  convey  land.  The  vendor  was  unable  to  convey 
by  reasim  of  want  of  title  Held,  a  good  defense,  after  reasonable  efforts  to 
obtain  title,     ^wepsou  v   Johnson,  81  N.  C,  449. 


442         ritV  ox  SPEC  IFIC  I'KUFoKMANCE  OF  CONTKACTS. 


CHAPTER  XIX. 

OF    FAILFKE    OF    THE    COXSIDERA'IloX, 

§  881.  It  will  be  necessary  to  inquire  under  what  circum- 
stances events  wliicli  either  detennine  the  existence  of  die 
subject-matter  of  the  contract,  or  essentially  affect  it.  will 
furnish  a  defense  in  specific  performance.  Events  affecting 
the  subject  matter,  but  not  essentially,  may  give  rise  to  a 
claim  for  compensation,  but  will  not  prevent  performance 
of  the  contract.' 

'  Vi-ndor  xlio'ild  inspect  property.^  A  piirchuser  had  an  opportunity,  and  was 
urged  to  inspect  the  property,  i)ut  neglected  to  do  so;  there  was  no  fraud  in 
the  transaction.  Held,  that  lie  slundir  not  be  relieved  from  his  purchase  by 
reason  of  the  partial  failure  of  consideration      Vincent  v.  Berry,  46  Iowa.  571. 

P.THoii'il  property,  fdilnre  of  conxidenitioii.]  The  rule  is.  not  only  that  there 
is  sucii  property.  Init  that  it  is  really  in  the  form,  and  is  of  the  deseription 
stated  in  the  agreement.     .Morrill  v.  Aden,  I'.J  Vt  ,  oO.l;  Dutman  v.  Porter,  loO 

Ma.ss.,  m:. 

Property  sold  by. order  of  Vie  court.']  In  such  a  case,  the  question  frccpiently 
to  be  determined  is  whether  the  agreement  is  conchiiled  by  the  sale,  subject  to 
defeat  if  the  same  is  opened,  in  which  case  the  agreement  will  relate  back  to 
the  day  of  sale:  or  whether  the  contract  is  not  concluded  until  it  becomes  ob.so- 
lute  by  having  been  confirmed  by  the  court  The  rule  appears  to  be,  that  the 
first  review  is  sustained  bv  the  weight  of  authority.  Ve.sey  v.  Elvvood.  '6  Dr. 
&  W..  74;  Anson  v.  Tovvgood.  1  .1.  &  W.,  (i:j7;  Robertson  v.  Spelton.  12  Beav., 
260;  See,  also,  Busey  v.  Hardin.  2  B  Mon  ,  4i)7;  Owen  v.  Owen,  5  Humph., 
852;  Kobb  V.  ]Mann,  I  Pa  St,  ;>00.  is  an  in.struciive  case  in  this  connection. 
See,  as  well,  Stoner  v.  Rice,  3  Whart.,  2.");  iiashaw  v.  Whisler,  ;j  Watts.  41)4; 
Morri.son  v.  Wurtz.  7  Watts,  4:57;  Bjllas  v.  McCarthy,  10  Watts,  22;  Andrews 
V.  Scottau,  2  Bland  Ch.  (Md.),  62!). 

IiKibiUtii  to  f'lltillattime  (uireed  upon.]  Where  an  a^rreemcnt  to  purchase  is 
to  be  completed  at  a  definite  period,  and  the  title  is  tinaily  made  out,  the  par- 
ties to  the  same  continuing  in  treaty  and  the  party  purchasing  not  by  any  acts 
relca.sed  from  his  agreement,  it  is  the  rule  that  ilie  estate  belongs  to  the  pur- 
chaser, from  the  date  of  the  contract,  and  the  money  to  the  party  who  sells. 
The  completion  of  title  must  not  i)e  unreasonal)ly  delayed  by  the  vend.tr. 
Brewer  v.  Herbert,  30  Md..  :50!;  Griffin  v.  Cunningham,  10  Gratt.,  571.  Where 
the  house  was  consumed  by  fire  before  titles  was  perfected,  held,  that  specific 
performance  would  not  be  tlecreed.     Christian  v.  Cabell,  2i  Graft...  82. 

Un£.vcitml  delay  in  paymeM.]  Where  this  is  the  fact,  and  a  material  change 
of  circumstances  have  transpired,  which  makes  the  contract  more  onerous, 
equity  will  not  decree  its  specific  performance.  Andrews  v.  Bell,  56  Pa.  St  , 
343;  iiouton  v.  Sheifer,  21  Gratt.,  474;  Menet  v.  Brown,  10  N.  J.  Eq.  (4  Green), 
286. 

(Jondilional  contract.  Rule]  The  condition  must  be  performed,  before  the 
contract  becomes  absolute,  'i'he  propeity  is  at  the  risk  of  the  vendor,  until 
thit  is  the  fact.  Penfield  v.  Penfield,  4rConn..  474;  .laycox  v.  Clark,  Walk, 
(ilich.)  I  h.,  50'^:  Davis  v.  Bowker,  1  Nevada,  487;  Counter  v.  Macpherson,  5 
Moo.  P.  C.  C,  83. 


FAILUllE   OF   THE    CONSIDERATION.  443" 

1.  Eoenia  prior  to  the  contract. 

%  88*2.  Events  may  happen  before  the  conclusion  of  a 
contract,  which  may  either  (1)  determine  the  existence  of 
its  subject  matter,  or  (2)  mateiially  affect  such  subject  mat- 
ter. The  former  chiss  of  events  do  not,  properly  speaking, 
avoid  the  contract,  but  prevent  its  ever  arising,  on  the  ground 
of  the  common  mistake  ;  the  hitter  class  of  events  give  the 
parry  injuriously  affected  a  right  to  avoid  the  contract.(rt)' 

§  883.  In  one  case,  tlie  contiact  was  for  the  sale  of  an 
estate  in  fee  in  remainder  cm  an  estate  tail :  a  conveyance 
had  been  executed  and  a  bond  given  for  payment  of  tlie 
purchase  moiiey,  when  it  was  discovered,  for  the  first  time^ 
that  at  the  time  of  the  sale  no  such  remainde'r  existed,  the 
tenant  in  tail  having  previoush'  suffered  a  recovery  ;  the 
court  rescinded  tlie  contract,  and  ordered  the  bond  to  be 
delivered  up  and  repayment  to  be  made  of  all  interest  which 
liJid  been  paid  on  \l.\hf 

§  '^'^^.  In  another  case,  where,  in  order  to  preserve  the 
timber  on  an  entailed  estate  fiom  being  cut  down  by  the 
assignee  in  the  insolvency  of  a  tenant  for  life,  the  owner  of 
the  next  life  estate  and  the  tenant  in  tail  contracted  with 
the  assignee  that  he  should  be  deemed  to  be  entitled  to  the- 
timber,  as  if  it  had  been  cut  down  and  carried  away  by  him 

(nr.)  Consi  \cx  Pri<'.haril  v.  Mercliant-*'.  etc  ,        (i)  Hitchcock  v.  Giddi  gs,  4  Pri.,  T35. 
Lite  Assurance  Sock-ty,  3  U.  U  ,  N.  >-5.,  6-2i. 

'  It  is  well  settled  tluita  contract  muy  be  avoided  for  failure  of  consideration; 
but  it  must  l)e  a  total  one,  or  at  least  total  as  to  distinct  parts  of  the  contract; 
the  oI)ject  of  the  agreement  must  he  defeated  or  rendered  unattainable  by  the. 
default.  Morrill  v.  Aden,  li)  Vt.  (4  Washb.),  50'):  Baker  v.  Thompson,  1& 
Ohio,  504  -clhy  v.  Hutchinson,  4  Gilm.,  aiU;  .Jacox  v.  Clark,  Walk.  Cli.,  508, 
is  a  case  analogous  in  principle  with  Hitchcock  v.  Giddings,  cited  in  the  text. 
The  defendant,  there,  received  the  grant  of  the  right  to  use  certain  Avater 
power,  and  dig  a  race  on  complainaut's  land,  in  consideration  of  erecting  a  mill 
at  a  certain  place  where  their  lands  joined.  But  the  defendant,  having  diver- 
ted the  water  from  the  complainant's  land,  built  his  mill  at  another  place.  It 
was  held  that  the  consideration  had  failed,  and  the  complainant  was  entitled 
to  a  reconveyance;  and  further  that  the  defendant  should  be  enjoined  from  set- 
ting up  his  deed  in  defense  in  any  action  for  a  previous  diversion  of  the  water. 
At  law,  a  failure  of  consideration  in  cases  of  contract,  is  constantly  treated  as 
a  sufficient  ground  for  consitlering  the  contract  as  rescinded  and  maintaining 
an  action  for  money  had  and  received.  Cloherty  v.  Creek,  3  Har.  ct  J.,  ;)28; 
Eames  v.  Savage,  14  Mass.,  435;  Lyon  v.  Annable,  4  Conn.,  850;  Gillet  v. 
Maynard  5  .John.,  h5;  Ravmond  v.  Bearnard,  VI  id.,  274;  Wheeler  v.  Board. 
Id  ,  868;  Davis  v.  :Marston.  5  Mass.,  lyO;  Danfortli  v.  Dewey.  8  N.  H.  79; 
Spring  V.  Cotlln,  10  Mass.,  81;  Lacoste  v.  Flotard,  1  Rep.  Con.  Ct.,  467;  Whar- 
ton V.  O'Hara,  2  N.  &  M.,  65;  Duncan  v.  Bell,  Id.,  158;  Pettiboue  v.  Roberts, 
2  Root,  258;  Boyd  v.  Anderson,  1  Overt'.,  488;  Putnam  v.  Westcott,  19 
John.,  73. 


444      fi:y  on  si»i:cii'ic  pkkfoji.maxce  of  coxtracts. 

on  a  specified  day  prior  to  the  contract,  but  should  not 
actually  cut  it  before  another  specified  day  ;  and  at  the  time 
when  tliis  contract  was  made,  the  insolvent  was  dead,  but 
no  ])arty  to  the  conti'act  was  aware  of  that  fact ;  the  court 
of  appeal  declined  on  the  grounds  of  mistake  and  absence  of 
consideration,  to  enforce  the  contract.(c) 

§  S8.>.  Again,  where  a  contract  for  the  sale  and  purchase 
of  shares  in  a  company  was  entered  into  at  a  time  when,  in 
fact,  though  neither  vendors  nor  purchaser  knew  it,  a  peti- 
tion for  winding  up  the  company  had  been  presented,  the 
court  of  appeal  refused  to  enforce  the  con  tract.  (<;Z) 

§  886.  A  contract  relating  to  a  chattel  implies,  at  com- 
mon law,  the  existence  of  the  chattel  and  its  existence  in 
the  form  or  of  the  description  specified  in  the  contract,  and 
consequently  an  event  destroying  the  chattel  before  the  con- 
tract is  concluded  puts  an  end  to  it.  Therefore,  where  a 
contract  for  the  sale  of  a  life  annuity  was  concluded  in 
England  on  the  28tli  of  February,  and  the  annuitant  died 
in  New  South  AVales  on  the  6th  of  the  same  month,  there 
was  held  to  be  no  contract  ;(c)  and  where  a  floating  cargo 
was  sold,  and  it  snbsequentl}^  appeared  that,  at  the  time  of 
the  sale,  the  captain  had  sold  the  cargo  abroad,  in  conse- 
quence of  the  damage  it  had  sustained  at  sea,  the  exchequer 
chamber  and  the  House  of  Lords  held  the  contract  to  be 
incapable  of  being  enforced. (/")'  But  no  warranty  being 
implied  at  common  law  as  to  condition,  the  sale  of  a  ship 
at  sea,  which  at  the  time  happened  to  have  been  stranded, 
was  held  binding,  for  the  subject  of  the  contract  still  con- 
tinued a  ship.(//)  The  impossibility  of  performing  a  con- 
tract of  which  the  subject  matter  is  extinct  would,  of  course, 
prevent  the  interference  of  a  court  of  equity  in  these  cases, 
if,  on  other  grounds,  it  could  give  relief. (/c) 

(c)  Cochrane  v  Willis,  L.  li.  1  Ch,  58.  (/)  Coutiirierv.  Ha8tle,8  Kx  ,40;  reversed 

id)  Kmmersoti's  CBfe,  L.  K.  1  <Jh.,  433,  re-  In  Cam.  Scic.,9  Kx.,  lOi;  tlie  reversal  aflirm- 

versini?  tii«  onler  ol'  Lt)rd  Hoiullly,  M.  It  ,  L.  eil  ."J  U.  L   C,  673 

K.  2  Eq  ,  231.  (a)  Barr  v   Gliis..n,  3  M.  &  VV.,390. 

(«)  siri'klHiifl  V.  Turner,  7  Exch.,  2US;  cf.  (h)  sets  liil'ra,  §  H6H. 
Cochrane  v.  Wllhs,  L.  K.  1  CD.,  ^S. 

'  Tlie  same  doctrine  obtain.s  at  law.  Dick.son  v.  Cunninijham,  Mart.  &  Yerg., 
20:1  In  that  case,  the  defendant  was  indebted  to  A.,  who  was  indebted  to  fi., 
who  was  indebted  to  tne  phiintiff;  they  ail  met  toj^ether.  and  the  defendant 
aided  ^1.  in  successfully  a.ssigning  to  the  plaintiff  a  debt  which  belonged  to 
neither:  and,  by  this  means,  A.  paid  his  debt  to  ]}.  and  B.  paid  hi.s  debt  to  the 
plaintilf,  aiuj  ^4  credited,  the  defendant.  Held,  tiiat  the  plaintiff  might  disaf- 
lirm  the  coutratt,  and  maintain  an  action  of  assumpsit  against  the  defendant. 


FAILURE    OF   THE   CONSIDERATION.  445 

§  887.  But  a  person  may  so  contract  as  to  preclude  him- 
self from  raising  any  question  as  to  the  existence  or  deter- 
mination of  the  subject  matter  at  the  time  of  the  contract. (/) 
§  888.  The  question  of  the  time  at  which  the  contract 
became  complete,  frequently  arose  in  cases  of  sales  by  the 
court  of  chancery,  because  until  the  report  had  been  con- 
firmed absolute,  or,  according  to  the  subsequent  practice, 
until  eight  days  after  the  certilicate  of  the  purchase  had 
been  signed  by  the  judge  in  chambers,  the  biddings  might 
be  reopened.(,/)     In  these  cases,  the  question  was,  whether 
the  contract  was  to  be  treated  as  concluded  by  the  sale  be- 
fore the  master  or  the  chief  clerk,  subject  only  to  being 
defeated  by  the  opening  of  the  biddings,  in  which  case  the 
confirmation  related  back  to  the  day  of  sale,  and  that  day 
divided  events  prior  and  events  subsequent  to  the  contract ; 
or,  on  the  other  hand,  whether  the  contract  was  to  be  con- 
sidered concluded  only  when  it  became  absolute  and  inde- 
feasible by   the   confirmation.      In   the   case   of  Vesey  v. 
Elwood,(^-)  Lord  St.  Leonards  decided   on  the  former  of 
these  views,  that  the  sale  transferred  the  property,  subject 
only  to  the  risk  of  its  being  opened.     This  was  the  view  of 
Lord  Eldon  also,  in  Anson  v.  Towgood,(Z)  though  it  seems 
at  variance  with  the  previous  cases(7M)  before  him.     The 
other  view  was  supported  by  the  statement  of  Lord  Lang- 
dale,  M.  R.:  "By  the  established  rule  of  the  court,  the 
purchaser  is  to  be  considered  as  the  owner  of  the  estate 
from  the  date  of  the  order  confirming  the  report  ;"(7i)  but 
as  the  circumstance  which  in  this  case  gave  rise  to  the  ques- 
tion was  not  only  after  the  sale  but  after  the  confirmation 
also,  the  case  is  probably  not  of  the  same  weight  on  the 
point   now  under  discussion,   as  if  the  circumstance  had 
been  after  sale  but  before  confirmation.' 

(i)  Hanks  V.  Pulling,  25  L.  J  Q.  B.,375;  S.  (m)  Ex  parte  Minor,  11  Ves.,  559  (which 

C  (s  n.  Hanks  v.  Pulling)  4  W.  U.,  607.    See  may,  perhaps,  be  supported  by  the  general 

Uifra  S  1-^88  power  of  the  court  in  dealing  with  such  con- 

(i)  'll  and' 16  Vict.,  c.  80.  8.  34.  contracts) .     Twigg  v  FiUeld   Jfje^  •  pll" 

(k)  3  Dr  &  War    74  (»*)  Uobertson  v.  rikelton,  1-2  Beav..  26  i,  265, 

(I)  IJ.  &  W.,  637*.  cf.  Paramore  v.  Greenslade,  1  Sm.  &  G.,  o41. 


1  In  Kentucky,  it  is  clearly  the  rule  that  the  highest  bidder  at  a  sale,  under 
a  decree  is  held  only  as  a  preferred  bidder,  subject  to  confirmation  by  the 
chancellor.  Busey  v.  Hardin,  3  B.  Monr.  407.  And  it  would  seem  that  the 
same  doctrine  is  adopted  in  Tennessee.  Owen  v.  Owen,  5  Humph.,  3o3  In 
Maryland  the  practice  of  opening  biddings  does  not  prevail.  Andrews  v.  boot- 
ten,  3  Bland,  G39. 


446         FJiY  ox  SPECIFIC  PERFOmiAN^Cp:  OF  COXTKACT.S. 

§  N89.  But  the  former  practice  of  opening  biddings  has 
now  been  discontinued  bj'  statute,  and  it  has  been  enacted 
that  tlie  liighest  bona  fide  bidder  at  the  sale,  provided  he 
■shall  have  bid  a  sum  equal  to  or  higher  than  the  reserved 
price  (if  any),  shall  be  declared  and  allowed  the  purchaser, 
unless  the  court  or  judge  shall,  on  the  ground  of  fraud  or 
impropei-  conduct  in  the  management  of  the  sale,  upon  the 
Ai)plication  of  a  person  interested  in  the  land  (such  ax)plica- 
tion  to  be  made  to  the  court  or  judge  before  the  chief  clerk's 
■certificate  of  the  result  of  the  sale  shall  have  become  bind- 
ing), either  open  the  biddings,  holding  snch  bidder  bound  by 
his  bidding,  or  discharge  him  from  being  the  j)urchaser.(c>) 
Under  this  enactment  it  seems .  clear  that  the  purchase  is 
-complete  when  the  sale  at  or  above  the  reserve  price,  if  any, 
has  taken  place. (^) 

2.  E-cents  to  the  contract. 

§  890.  Events  subsequent  to  the  contract  will,  in  some 
'Cases,  furnish  a  defense  to  an  action  for  si)ecific  perform- 
ance ;  in  other  cases  they  will  not, 

§  891.  Where,  from  the  nature  of  the  contract,  it  ap- 
pears that  the  contracting  parties  contemplated  its  fulfill- 
ment only  in  the  event  of  the  continued  existence  of  some 
subject  matter  or  thing,  the  contract  is  held  to  be  subject 
to  an  implied  condition  that  it  shall  cease  with  the  subject 
matter  or  thing  :  and  if,  before  performance,  the  thing  cease 
to  exist,  the  contract  goes  with  it.{q). 

§  893.  In  the  case  of  contracts  for  the  sale  of  land,  it 
has  been  laid  down  with  regard  to  events  happening  after 
their  being  signed,  that  the  question  on  whom  the  advan- 
tage or  loss  resulting  from  them  would  fall,  and  whether, 
therefore,  the  court  would  enforce  specific  x^^i'^oi'^^^^J^ce 
without  reference  to  them — or  whether,  on  the  other  hand, 
they  might  determine  the  contract — is  to  be  decided  by 
w^hether  or  not  the  title  had  then  been  actually  accepted,  (r) 
But  the  more  correct  doctrine  appears  to  be  that  the  equita- 
ble estate  passes  on  the  signature  of  the  contract  if  there 
be  a  good  title,  though,  that  may  not  be  shown  till  after- 

(0)  30  &  31  Vict.  c.  48,  8.  7.  (»-)Wyvlll  v.  Bishop  of  Exeter,  1  Pri.,  292, 

{p)  Cf.  Re  Bartlett,  16  Ch.  D.,  561.  295  n.;  and  see  Paine  v.  Meller,  6  Vea.,  349. 

iq)  Taylor  v.  Caldwell,  3  Best  &  S.,  826; 
Howell  V.  Coupland,  1  Q.  B.  D.,  258. 


FAILUItK    OF   TlIK    COXSlDKIiATlOX.  447 

wards.  '-It  is,"  said  Plumer,  V.  C,  "  tlie  established  doc- 
trine of  eqtiity,  that  if  a  contract  to  purchase  is  to  be  com- 
pleted at  a  given  period,  and  the  title  injuiallf/  made  out, 
the  parties  continuing  in  treaty,  and  the  purchaser  not  ])y 
any  acts  released  from  his  bai-gain,  the  estate  is  considered 
as  belonging  to  the  purchaser  from  the  date  of  the  con- 
tract, and  the  money  from  that  tiiiie  as  belonging  to  the 
vendor.  "(5)' 

§  893.  Where  the  contract  is  in  its  inception  expressly 
conditional,  the  transfer  of  the  equita])le  estate  from  the 
vendor  to  the  purchaser  takes  place  not  on  the  ccjnclusion 
of  the  contract,  but  on  its  becoming  absolute  by  the  per- 
formance of  the  condition,  and  until  that  event  the  property 
sold  remains  at  the  risk  of  the  vendoi-.  This  is  well  illus- 
trated by  a  case  which  was  decided  by  the  judicial  com- 
mittee of  the  privy  council,  on  appeal  from  the  court  of 
chancery  in  Canada.  A  contract  was  entered  into  for  a 
lease  for  live  years,  from  the  1st  of  April,  1840,  the  land- 
lord undertaking  to  erect  by  that  time  a  new  warehouse  on 
part  of  the  ground  to  be  demised,  and  to  put  the  old  ware- 
house in  repair,  the  amount  of  rent  to  be  determined  with 
reference  to  the  amount  expended  on  the  buildings.  The 
new"  building  was  not  completed,  nor  the  old  warehouse 
repaired,  on  the  1st  of  April,  but  no  objection  was  made  by 
the  intended  lessees,  wdio  then  continued  to  occupy  part  of 
the  premises  under  a  former  contract.  Shortly  afterwards, 
the  whole  premises  w^ere  destroyed  by  tire.  The  landlord 
brought  a  bill  for  specific  performance  of  the  contract,  and 
for  the  defendants  to  rebuild  the  premises  and  accept  a  lease. 
It  was  held,   in  the  first  place,   that  if  time  w^ere  of   the 

(«)  In    Harford   v.  Purrier,    1  Mad  ,   538.    See  too  infra,  §  13G.j  et  seq. 

>  If  a  defendant  is  able  to  make  a  perfect  title  at  the  time  of  the  decree,  the 
plaintiff's  rights  under  his  contract  of  purchase  are  as  thoroughly  jirotocted, 
and  his  objects  as  successfully  aUaiucd,  in  the  views  of  a  court  of  equity,  as 
though  title  had  been  given  on  the  day  of  the  contract.  The  right  of  a  pur- 
chaser, in  these  cases,  is  clearly  a  fixed  and  determinate  one.  So  nuich  so  tliat 
■where  there  is  a  contract  for  the  purchase  of  land,  and  the  person  contracting 
to  sell  declines  executing  the  contract,  upon  the  ground  that  he  is  unable  to 
give  a  good  title,  and  the  purchaser  files  his  bill  to  compel  the  defendant  to 
complete  his  contract,  or  rescind  it,  if  the  defendant  is  able  to  give  a  good  title 
at  the  time  of  the  decree,  the  complainant  will  be  compelled  to  accept  it. 
Pierce  v.  Nichols,  1  Paige,  244;  Baldwin  v.  Salter,  8  id.,  473;  7  id.,  78;  Sey- 
mour V.  Delancey,  3  Cowen,  446.  In  the  cases  of  chattels  the  rule  is  different. 
Seymour  v.  Delancey,  3  Cowen,  535. 


448         FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

essence,  it  luid  been  waived  by  the  defendants,  but  that  this 
did  not  waive  the  obligation  on  the  leesor  as  to  bnilding,  and 
that  the  defendants  were  not  bound  to  accept  a  lease  till 
that  was  performed  ;  and,  in  the  second  place,  that,  treat- 
ing the  contract  to  take  a  lease  as  a  contract  to  purchase, 
the  warehouse  was  never  purchased  by  the  lessees  until  it 
was  completed  by  the  lessor  ;  and,  consequently,  that  until 
that  was  done  it  was  not  the  property  of  the  lessees,  nor  at 
their  risk.  (^)' 

§  804.  In  the  case  of  a  contract  legal  at  the  time  it  was 
entered  into,  but  subsequently  and  before  judgment  ren- 
dered illegal  by  statute,  it  seems  to  be  clear  on  principle 
that  no  specific  performance  could  be  granted  except  where 
the  court  could  still  execute  the  contract  cy  jx'Q^  •'(^)  a  con- 
tract thus  rendered  illegal  would  in  the  contemplation  of  the 
court  have  become  impossible. (y)"" 

§  895.  But  when  the  contract  has  been  completely  made, 
the  thing  sold  is  at  the  risk  of  the  purchaser,  who  must  bear 

(0  Counter  v.  Macpherson,  5  Moo.  P.  C.  Barber  v.  Hodgson,  3  M.  &  S.,  267;  Eaposito 

C.,S3.  V.  Bowden,   4  El.  &  Bl.,   963.     See  also   vv'ln- 

(?<)  See  infra,  §  979  et  seq.  nington  v.  Briscoe,  8  Mod.,  51,  and  nupra,  § 

{V)  Alkinbou  V.  Kuchie,  10  East,  530,  534;  456 

'  Personal  property  is,  equally  with  real  estate,  the  subject  of  conditinal  sale ; 
and  possession  is  to  be  construed  only  as  prima  facie  evidence  of  ownership. 
Mount  V.  Harns,  1  S.  &  M.,  185.  Where  a  slave  was  delivered  under  an 
agreement  that  the  person  taking  her  should  return  her  or  pay  a  certain  price 
for  her  in  a  given  time,  it  was  held  to  be  a  conditional  sale,  and  that  the  slave 
was  not  subject  to  the  vendee's  debts,  while  the  condition  was  not  performed. 
Id.  Where  a  slave  is  delivered  under  an  agreement  of  sale,  at  a  fixed  price,  to 
be  paid  at  a  day  certain,  but,  until  paid,  the  legal  title  to  remain  in  the  vendor, 
the  title  of  the  buyer  does  not  become  absolute  until  the  paj'ment  of  the  pur- 
chase money,  nor  does  it  become  liable  for  his  debts  until  then.  Gambling  v. 
Reed,  Meigs,  281.  But  in  such  a  case,  the  seller  holds  the  legal  title  only  as 
security  for  the  purchase  money,  and  if  the  buyer  conveys  the  slave  to  a  trus- 
tee to  secure  a  debt,  equity  will  not  order  the  slave  to  be  given  up  absolutely  at 
the  suit  of  the  seller,  but  a  short  time  will  be  given  to  the  defendants  to  pay 
the  purchase  money  and  keep  the  slave.  Id.  In  the  conditional  sale  of  a 
slave,  the  property  is  at  the  risk  of  the  vendee.  Prether  v.  Norfleet,  1  A.  K. 
Marsh.,  178.  A  condition  may,  however,  be  waived  by  subsequent  acts.  So, 
where  goods  are  sold  and  delivered  on  condition  that  the  purchaser  gives  his 
own  notes  on  time  therefor,  endorsed  by  a  third  person,  which  he  fails  to  per- 
form, and  the  seller  then  takes  the  purchaser's  own  notes,  for  the  price,  on 
demand,  with  warrant  of  attorney  to  confess  judgment  thereon,  this  is  a  waiver 
of  the  condition,  and  an  affirmance  of  the  sale.  Saunders  v.  Turbeville,  3 
Humph.,  272. 

*  Contract  separable,  part  illegal.]  A  contract  is  void,  where  a  part  only 
of  the  same  is  illegal.  The  rule  is  otherwise,  in  a  case  where  the  consideration 
is  legal,  and  some  of  the  stipulations  which  can  be  separated,  are  illegal. 
Featherstone  v.  Hutchinson,  Cro.  Eliz.,  199;  Schackell  v.  Cosier,  3  Scott.,  59; 
Crawford  v.  Monell,  8  Johns.,  253;  Donnalen  v.  Lenox,  6  Dana,  91;  Woodruff 
V.  Henniman,  11  Vt.,  592;  Leavitt  v.  Palmer,  3  N.  Y.,  19. 


FAILURE   OF  THE   CONSIDEEATION.  449 

all  subsequent  losses,  and  is  entitled  to  all  subsequent 
gains  :(?o)  subsequent  events,  therefore  can  neither  deter- 
mine the  contract  nor  give  either  party  a  right  to  resist  its 
performance. 

§  896.  Formerly  this  principle  does  not  appear  to  have 
been  as  clearly  recognized  as  it  is  now  :  thus,  where  a  great 
subsequent  advantage  accrued  to  one  party,  Lord  Hard- 
>  wicke  seems  to  have  doubted  how  far  the  court  would  de- 
cree performance  on  the  original  terms  of  the  contract. (?/) 
And  where  A.  contracted  to  sell  his  estate  for  an  annuity 
during  his  life,  the  time  appointed  for  conveyance  was  the 
31st  of  October,  but  the  annuity  was  to  commence  from  the 
5th  of  April  previous,  and  to  be  paid  half-yearly  :  the  half- 
year' s  payment,  due  on  the  5th  of  October,  was  not  paid 
or  tendered,  and  on  the  12th  of  November  A.  died  from  an 
accident :  Lord  Bathurst  and  the  House  of  Lords  dismissed 
a  bill  for  specific  performance.  (2)  Lord  St.  Leonards(a)  at- 
tributes this  decision  to  the  neglect  to  make  or  tender  the 
payment ;  but  it  does  not  seem  clear  that  the  case  was  not 
considered  by  the  judges  who  decided  it  as  one  of  inade- 
quate consideration,  and  treated  as  a  case  of  hardship. 

§  897.  The  principle  as  now  established  is  illustrated  by 
numerous  cases.  Thus,  where  money  was  left  to  be  laid  out 
in  land  to  be  settled  to  the  use  of  A.  in  tail,  remainder  to 
B.  in  fee,  and  A.  and  B.  agreed  to  divide  the  money,  and 
iDefore  the  contract  had  been  carried  into  execution  A.  died 
without  issue,  the  contract  was  nevertheless  specifically  per- 
formed. (5)  So  a.  contract  to  sell  for  an  annuity  will  not  be 
avoided  by  the  death  of  the  annuitant,  even  before  any  pay- 
ment, (c)  So  where,  subsequently  to  the  contract  for  the 
sale  of  a  house,  the  house  is  burnt  down,  the  loss  falls  on 
the  purchaser  :{d)  and  in  such  an  event  the  purchaser  will 
not,  in  the  absence  of  part  of  any  provision  in  the  contract, 
be  entitled  to  the  benefit  of  an  existing  insurance  against 
fire  effected  by  the  vendor,  (e)     And  again,   where  a  trader 

^«rt  Infitu  1  iii    tit  "4  sec  3;  Porthier,  Tr.  (f^)  Paine  v.  Moller,  6  Vr.;.,  MO.    In  Cass  v. 

du^ontrat  de  Vente  ParflV.  Buddie.  2  Veru.,  2ow  the  ea^t  quake  which 

'^^.TplrlordTanie'^s'ln  Revel  v.  Hussey,  destroyed  the  houses  appearB  "j^h.^e  taken 

9  Knii  Xr  Ti  "ST  place  after  the  contract  had   been  carriea 

(jT)  ctvy  V    Barber  2  Atk  ,  489.    See  also  into  eflVct.    See  Raithby's  note  on  case,  and 

Stent  V.  Baills  2  R  Wms    217  1  fro  C  c.^  156  n               ^    ^           ^ 

S)  \ZV-i!      '  '  FrttoTuCi^.  D.  297,  affirmed  in  C  A.  25 

(h^'  CarCV  Carter  Forrest  271  Sol.  Jo.  448;  cf.  Edwards  v.  West.  7  Ch.  D. 

SMon'imer';'%peTlBro.'-C.C,.l^  858,    and    distinguish    Reynard  v.  Arnold. 

Jackson  v.  Lever,  3  Bro.  C.  C,  605.  L.  R-  10  Ch.  38b. 
29 


450        FRY  ON  SPECIFIC  PEKFORMANCE  OF  CONTRACTS. 

agreed  to  take  two  persons  into  partnership  for  a  period  of 
efghteen  years,  in  consideration  of  a  sum  to  be  paid  by  in- 
stalments, and  before  they  were  all  paid  he  became  a  bank- 
rupt, the  assignees   were  held   entitled   to   the   remaining 

instalments.  (/) 

§  898.  xVnother  class  of  cases  which  have  illustrated  the 
same  principle  has  arisen  from  the  failure  or  winding-up  of 
a  company  after  a  contract  has  been  entered  into  for  the 
purchase  of  shares  into  it,  but  before  the  contract  has  been 
completed.  Such  an  event  furnishes  no  defence  to  an  action 
for  specific  performance  of  the  contract  to  buy  the  shares.  (^) 

§  899.  Where  a  contract,  capable  of  being  specifically 
executed  at  the  time  of  the  issuing  of  the  writ,  has  by  lapse 
of   time  between  that  and  the  trial   become  incapable  of 
execution  in  the   ordinary  way,   so   as   to   confer   future 
benefits,  the  question  arises,  what  course  ought  to  be  pur- 
sued.    This  question  came  before  Plumer,  M.R.,  in  Nesbitt 
V.  Meyer,  (70  where  a  bill  was  filed  before  the  term  expired 
for  a  specific  performance  of  a  contract  to  accept  a  lease, 
but,  without  fault  on  either  side,  the  term  expired  before 
the  hearing.     The  case  w^as  decided  upon  another  point,  but 
the  judge  evidently  inclined  to  the  opinion,  that  the  court 
would  not  decree  the  execution  of  a  formal  lease  after  the 
expiration  of  the  term.     In  accordance  Avith  this  view,  Lord 
Cranworth  expressed  the  opinion  that  it  would  require  very 
special  circumstancjes  indeed  to  induce  the  court  to  decree 
specific  performance  of  a  lease  after  the  expiiation  of  the 
term,  {i)     ' '  What  the  court, ' '  said  his  Lordship,  (,/)  ' '  really 
would  be  decreeing  in  such  case  would  not  be  the  specific 
performance  for  an  agreement  for  a  lease,  but  merely  that 
the  lessee  should  make  himself  a  specialty  debtor  in  respect 
of  past  benefits  received."     It  is,  how^ever,  to  be  remarked, 
that  the  circumstances  of  the  case  before  Plumer,  M.  E,.,  and 
before  his  Lordship  were  different,   inasmuch  as  in  the 
former  the  delay  seems  to  have  been  entirely  due  to  the 

(n  Akhurst  V.Jackson,  ISw.  85.    See  also  (A)  1  Sw.  223.                    r.     ,  t...   ■      ^      k 

Lord  Eldon  in  Coles  v.  Trecothick,  9  Ves.  (i)  Walters  v.  Northern  Coal  Mining  Co.,  5 

oig  De  G.  M.  &  G.,  629. 

(n)  Paine  v.  HutchiP?on,  L.  R.  3  Eq.  257;  (j)  5  De  G.  M.  &  G.  at  p.  639     Sec,  also, 

S  Ch  3S8-  Cole  V.  Bristowe,  L.  R.  6  Eq.  149,  Hoy)e  v.  Llvesey,  1  Mer.,  3«1,  and  De  Brassae 

l-iO  freversed  on  a  diflferent  ^rouna,  L  R   4  v.  Martyn  (11  W.  K.,  lOaO).  where  the  court 

Ch  3)-  Hawkins  V.  Mallby,  L.  R.  4  Eq.  572;  Intimated  that  the  plaintiffs  proper  course 

3c'h  188-  6  Eq.  505;  4  Ch.  201);  Chapman  v.  would  have  been  to  apply  to  have  the  case 

Shepherd  L  R  2C.  P.  228;  Taylor  v.  Stray,  advanced  so  as  to  La  beard  belore  the  ex- 

2  C   B.  n!  S.  175;  Stray  v.  Russell,  1  El.  &  piration  of  the  teim. 


El.  888. 


FAILUKE   OF   THE   CONSIDERATION.  451 

court ;  whereas  in  tlie  latter  no  steps  were  taken  until  just 
before  the  expiration  of  the  term,  so  that  it  \^■as  impossible 
for  the  plaintiff  to  obtain  a  decree  until  the  term  was  at  an 
end.  (A*) 

§  UOO.  On  the  other  hand,  the  opinion  of  Alderson  B. 
was  somewhat  at  variance  with  the  doctrine  above  stated. 
"  The  moment  the  bill  is  filed,"  said  his  Lordship,  (Z)  "the 
rights  of  the  parties  remain  fixed,  or  ought  so  to  do.  I  can- 
not accede  to  the  doctrine  in  Xesbitt  v.  'Meyer. {?7i)  How 
can  the  constitution  of  the  court  alter  the  rights  of  the 
parties  f  The  decision  in  the  case  in  the  Exchequer  seems, 
however,  reconcilable  with  those  before  stated  ;  for  the 
prayer  of  the  bill  was  for  the  specific  performance  of  a  con- 
tract for  a  lease,  and  for  an  account  of  arrears  of  rent  on  the 
footing  of  the  contract,  and  it  was  held  that  although  by 
the  expiration  of  the  term  before  the  hearing  the  specific 
performance  could  not  be  granted,  yet  that  the  plaintiff  was 
entitled  to  a  decree  for  an  account. 

g  901.  And  similarly,  in  a  previous  case,  Leach  V.  C. 
held  that  a  bill  might  be  maintained  hy  a  purchaser  for  the 
specific  performance  of  a  contract  for  a  life  annuity, 
although  the  annuitant  had  died  not  only  before  the  hear- 
ing, but  before  the  bill  was  filed,  where  there  were  arrears 
of  the  annuity  between  the  time  of  the  purchase  and  the 
death  of  the  annuitant,  to  which  the  purchaser  had  an 
equitable  title  under  the  contract :  but  his  Honor  said  that 
it  might  be  a  question  whether  such  a  bill  could  be  main- 
tained if  the  death  of  the  annuitant  were  to  happen  so  that 
the  purchaser  took  no  benefit  under  his  contract,  as  might 
happen  where  his  title  was  to  commence  at  a  future  time.(;i) 

§  902.  These  cases  perhaps  left  the  exact  state  of  the  law 
on  this  point  somewhat  difiicult  to  state.  But  now  that 
both  legal  and  equitable  remedies  may  be  obtained  in  one 
proceeding,  and  every  prudent  plaintiff  will  ask  for  both, 
the  point  appears  of  little  practical  importance." 

(/;)  Cf.  Anon  V.White,  3  Sw.,  108  n.,  where,  (/)  Wilkinson   v.   Torkington,  2  Y.    &  C. 

belore  the  lease  contracted  for  was  executed,  Ex  .  72G.  728. 

events  rendered  the  intended  subject-matter  (m)  1  Sw.,  223.                     „  „   ^ 

of  the  lease  useless  to  the  intended  lessee;  («)  Ivenney  v.  \\  exham,  6  Mad.,  .•?,k5.    See 

and    the   court   directed   only   a    quantum  Strickland  v.  Turner,  <  Ex.,  208. 
damniticavit. 


1  Sale  of  real  projjerti/  bij  an.  adminidrator.']     Wlieu  uu  administrator  .sells  the 
land  of  his  intestate,  thi.s  is  a  judicial  sale,  and  a  proceeding  in  rem,  the  doct- 


452        FRY  ON  specific;  PEIIFOKMANCE  OF  CONTRACTS. 

rine  of  caveat  emptor  applies.  The  vendee  takes  at  his  peril,  and  he  must  pay 
the  agreed  price  even  though  he  gets  no  title,  where  there  is  no  proof  of  fraud, 
mistake,  or  concealment  of  material  facts.  Burns  v.  Hamilton,  33  Ala.,  210; 
Garrett  v.  Lynch,  45  Ala.,  204. 

Real  property  conveyed  witJwvt  warranty.']  In  such  a  case,  where  there  has 
been  no  concealment  of  material  facts,  and  no  fraud,  no  part  of  the  purchase 
money  can  be  recovered  back  either  at  law  or  in  equity,  in  a  case  where  the 
title  proves  defective.  Botsford  v.  Williams,  75  111.,  132.  The  vendee  of  real 
property  was  fully  informed  of  the  nature  of  the  title  which  he  purchased.  In 
an  action  to  recover  the  purchase  money,  it  was  held,  that  he  could  not  wait 
the  determination  of  an  action  of  eviction  against  him.  Boisblanc  v.  Markey, 
21  La.  An.,  21. 


DEFAULT   ON   PAirr   OF   THE   PLAINTIFF.  453 


CHAPTER  XX. 

OF  DEFAULT  ON  PART  OF  TIIE_^ PLAINTIFF. 

§  903.  With  regard  to  the  matters  to  be  done  by  the 
plaintiff  according  to  the  terms  of  the  contract,  it  is,  from 
obvious  principles  of  justice,  incumbent  on  him,  when  he 
seeks  the  performance  of  the  contract,  to  show,  first  that  he 
has  performed,  or  been  ready  and  willing  to  perform,  the 
terms  of  the  contract  on  his  part  to  be  then  performed  \{a) 
and  secondly,  that  he  is  ready  and  willing  to  do  all  matters 
and  things  on  his  part  thereafter  to  be  done  ;  and  a  default 
on  his  part  in  either  of  these  respects  furnishes  a  ground 
upon  which  the  action  may  be  resisted. (Z>)'  We  will  first 
consider  cases  of  default  in  respect  of  terms  of  the  contract 
which  ought  to  have  been  already  performed.' 

(a)  2  Fq.  Gas.  Abr.,  33.    See.  also,  the  Ian-       (b)  See  infra,  §  915;  Walker  v.  Jeflreys,  1 
guage  of  Lord  Haiiiwicke  and  Gilbert  C.  B.,    Ha.,  341. 
cited  infra,  §§  925-927  ;  and  of  Ghillis  v.  Mc- 
Gliee,  13  Ir  Ch.  R.,48. 


'McNeil  V.  Magee,  5  Mason,  244;  Longworlh  v.  Taylor,  1  McLean,  395; 
CoLson  V.  Thompson,  2  Wheat.,  ;^36;  WaUs  v.  Waddle,  G  Pet.,  389;  Vail  v. 
Nelson  4  Rand.,  478;  Bates  v.  Wheeler,  1  Scam.,  54;  Stewart  v.  Kaymoud 
Rail  Road  Co.,  7  S.  &  M.,  568;  Wood  v.  Perry,  1  Barb.  Sup.  Ct.  K.,  114;  Se- 
crest  V.  McKenna,  1  Strobh's  Eq.,  356;  Richardson  v.  Linney,  7  B.  ]\Ionr.,571; 
Taylor  v.  McCardle,  9  S.  &  M.,  230.  A  party  seeking  a  specific  performance 
cannot  be  excused  from  proper  diligence,  on  the  part  of  the  defendant.  Long- 
worth  V.  Taylor,  1  McLean,  395;  Doyle  v.  Teas,  4  Scam.,  202.  And  a  subse- 
quent offer  to  fulfill  his  part  of  the  agreement,  by  a  party  who  has  failed  to 
perform  at  the  time  stipulated,  will  not  justify  the  granting  of  a  decree  of  spe- 
cific performance.  Unless  performance  can  be  shown,  or  the  benefit  of  ]ier- 
formance  secured  to  the  defendant,  specific  performance  will  not  be  decreed  in 
favor  of  a  vendee,  even  if  possession  has  been  given  and  improvements  made 
by  him.  Simmons  v.  Hill,  4  Har.  &  M'Hen.,  252.  This  principle,  that  a 
plaintiff  must  perform  the  essential  parts  of  his  contract,  is  tully  carried  out, 
at  law,  in  cases  concerning  deeds.  Fuller  v.  Hubbard,  6  Cowen,  13;  Fuller  v. 
Williams.  7  id.,  63;  Ncwcomb  v.  Bracket,  16  Mass.,  161,  Eames  v.  Savage,  14 
id.,  425;  Eveleth  v.  Scribner,  3  Fairf.,  24. 

2  He  must  do  equity,  lolio  asks  equity.']  "  There  are  few  Vases  in  which  a  court 
of  equity  will  insist  on  the  maxim  that  he  who  asks  equity  must  do  equity, 
with  more  vigor,  than  m  those  for  specific  performance."  Eastman  v.  Plumer, 
46  N.  H.  464  See  also  Tripp  v.  Cook,  26  Wend.,  143,  160;  Bruen  v.  Hone,  3 
Barb.  536-  Linden  v.  Hepburn,  3  Sandf.,  668;  Williams  v.  Fitzhugh,  33  N. 
Y.  444,  452-  Wheeler  v.  Tanner,  39  N.  Y.,  481,  502.  505;  Abernathey  v. 
Church  of  the  Puritans,  3  Daly,  1.  The  rule  is  well  settled  tliat  whore  a  party 
asks  the  specific  performance  of  a  contract,  he  must  first  .■^how,  either  that  he 
has  performed,  or  has  offered  and  is  willing  to  perform  all  that  his  contract  can 
at  any  time  call  for;  it  will  be  a  defence  to  his  action  to  show  that  he  has  made 


454         FRY  ox  SPECIFIC  PEllFOKMANCE  OF  COXTHACTS. 

1.   Tlie  iic.rformance  of  past  acts. 
§  904.  Of  what  terms  must  the  plaintiff  show  the  per- 
formance ?    The  answer  is  that  he  mast  show  i3erformance 
of  (1)  the  express  and  essential  terms  of  the  contract, 

(2)  Its  implied  and  essential  terms,  and 

(3)  All  representations  made  at  the  time  of  the  contract 
on  the  faith  of  which  it  was  entered  into :  but  that  he  need 
not  show  performance  of 

(4)  Non-essential  terms, 

(5)  The  terms  of  a  collateral  contract,  or 

(6)  Terms  of  which  the  defendant  has  prevented  or  waived 
the  performance. 

default  in  a  matter  of  serious  importance.  More  v.  Skidmore,  6  Litt.,  453; 
Greenup  v.  Strong,  1  Bibb.,  590;  Stewart  v.  Raymond,  15  Miss.,  568;  Hoen  v. 
Simmons,  1  Col.,  119;  McKinney  v.  Watts,  3  A.  K.  Marsh,  268;  West  v.  Case, 
3  Ind.,  301;  Stevenson  v.  Dunlap,  7  T.  B.  Monr.,  134;  Hepburn  v.  Aukl,  5 
Cranch,  262;  Stone  v.  Buckner,  12  Sm.  &  Marsh,  73;  Snodgrass  v.  Wolf,  11 
W.  Va.,  158;  Clay  v.  Turner,  3  Biljb.,  53;  Boone  v.  Missouri  Iron  Co.,  17 
How.,  340;  Vennum  v.  Babcock,  13  Iowa,  194;  Ganatson  v.  Vanboon,  3  Iowa, 
128;  Bearden  v.  Wood,  1  A.  K.  Marsh,  450;  Logan  v.  McChord,  2  A.  K. 
Marsh,  224;  Rogers  v.  Sanders,  16  Me.,  92;  Tvler  v.  McCardle,  17  Miss.,  230; 
Earl  V.  Halsey,  14  N.  J.  Eq.,  332;  Thorp  v.  Pettit,  16  N.  J.  Eq.,  488;  Colson  v. 
Thompson,  2  Wheat.,  336;  Slaughter  v.  Hains,  1  Ind.,  138;  Satterfield  v.  Keller, 
14  La.  An.,  606;  Wilson  v.  Brumfield,  8  Blackf..  146;  Watts  v.  Waddle,  6 
Pet.,  384;  Bryan  v.  Read,  1  Den.  &  Batt.  Eq..  78;  Reed  v.  Nor,  6  Greg.  283; 
Hooner  v.  Calhoun,  16  Gratt.,  109;  Jordan  v.  Deaton,  23  Ark.,  304;  Scott  v. 
Shepherd,  3  Gilman,  83;  King  v.  Kuapp,  59  N.  Y.,  762;  Jones  v.  Roberts,  6 
Call,  187;  Cox  v.  Boyd,  38  111.,  42;  Hauney  v.  Banks,  1  Rand,  408;  Frakfort 
Turnpike  Co.  v.  Churchill,  6  Monr.,  427;  Kitchen  v.  Coffyn,  4  Ind.,  504;  Board 
of  Supervisors  v.  Hennelemiy,  41  111  ,  179;  Huldeman  v.  Chambers,  19  Texas, 
1;  Purbush  v.  White,  25  Me.,  219:  Jones  v.  Alle.y,  4  Greene,  Iowa,  181;  O'Brien 
V.  Pertz,  48  Md.,  562;  Marburgh  v.  Cole,  49  Md.,  402. 

Executory  contract  to  sell  land,  relation  of  t?ie  parties.]  In  substance  the  same 
relation  exi.sts  between  the  vendor  and  vendee  in  an  executory  contract  for  the 
sale  and  purchase  of  real  estate,  as  exists  between  mortgagee  and  mortgagor. 
The  same  general  rules  govern  both  cases.  The  legal  title  to  the  estate  in  both 
cases,  is  held  as  a  security  for  the  debt ;  the  owner  of  the  equitable  title  receives 
it,  when  the  debt  is  paid.  Ellis  v.  Hussej^  66  N.  C,  501;  Jones  v.  Boyd,' 80 
id.,  258. 

Two  acts  to  be  done  at  the  same  time  ]  Where  this  is  the  case,  neither  party 
can  maintain  an  action  against  the  other,  unless  he  alleges  performance,  or  an 
offer  to  perform.     Brasswell  v.  Pope,  80  N.  C,  57. 

Equity  does  not  alioays  require  an  exact  performance.]  Equity  will  seek  to  do 
exact  justice  between  the  parties,  and  a  party  may  sometimes  be  excused  from 
a  literal  fullillment  of  his  contract,  where  the  failure  does  not  relate  to  matters 
of  substance.  Davis  v.  Hone,  2  Sch.  &  Lef.,  347;  Counter  v.  McPherson,  5 
Moo.  P.  C.  C,  83,  108;  Oram  v.  Merrill,  27  Iowa,  476. 

Omission  by  mutual  consent  of  a  part  of  the  contract^  Where  a  particular 
stipulation  in  the  contract,  which  does  not  materially  affect  the  riglits  or 
interests  of  the  parties,  has  been  omitted  by  mutual  consent;  this  will  not 
deprive  a  party  of  liis  right  to  a  decree  for  specitic  performance,  when  he  has 
otherwise  fully  performed.  Portland  R.  R.  Co.  v.  Grand  Trunk  R.  R.  Co.,  63 
Me.,  90. 


DEFAULT    ON    PAKT    OF   THE    PLAINTIFF.  455 

Lastly  it  will  be  necessary  to  consider 

(7)  Terms,  the  performance  of  which  has  become  impos- 
sible without  the  plaintiff's  fault  or  default. 

§  905.  (1)  As  to  the  express  terms  nothing  more  need 
now  be  said.  The  only  important  point  will  be  consid- 
ered when  we  come  to  the  difference  between  essential  and 
non-essential  terms. 

§  906.  (2)  The  performance  must  extend  to  such  of  the 
implied  terms  as  are  essential.  Thus  where  an  intended 
lessor  agreed  to  finish  a  house  for  an  intended  lessee,  who 
was  to  do  the  repairs  during  the  intended  term,  the  court 
held  that  in  such  a  contract  was  implied  an  undertaking  to 
deliver  it  in  complete  tenantable  repair  i^roper  for  houses  of 
the  character  demised :  and  this  undertaking  not  luiving 
been,  in  the  judgment  of  the  court,  performed,  the  intended 
lessor's  bill  for  specific  performance  was  dismissed  with 
costs. (c)  The  case  might  probably  have  been  determined  as 
one  rather  of  construction  than  of  the  implication  of  terms, 
i.  (P.,  that  to  finish  a  house  means  to  finish  so  that  the  house 
shall  be  in  proper  repair. 

§  907.  (3)  Performance  must  be  shown  of  representa- 
tions of  future  acts  made  at  the  time  of  the  contract  on  the 
faith  of  which  the  contract  was  entered  into.  These  repre- 
sentations(rZ)  need  not  amount  to  a  guarantee,  nor  in  case 
of  non-performance  give  a  right  to  an  action  either  for  dam- 
ages or  for  cancellation  of  the  contract :  but  yet,  if  made  and 
not  i^erformed,  they  are  a  defense  to  an  action  for  specific 
performance,  (e) 

§  908.  Thus  where  a  vendor  at  a  sale  represented  that 
he  would  make  improvements  in  the  access  to  the  property 
sold,  and  failed  to  do  so,  the  court  refused  specifically  to 
perform  his  contract ;(/)  and  the  same  was  the  decision  of 
the  court  in  a  case  where  the  vendor  by  his  agent  repre- 
sented that  a  church  should  be  erected  in  the  immediate 
neighborhood  of  the  building  ground  whicli  was  the  subject 
of  the  contract,  and  that  he  would  complete  certain  streets, 
and  the  purchase  was  made  on  the  faith  of  these  represen- 

(c)  Tildesey  v.  Clarkson,  30  Beav.,  419;  cf.  ty  be  considered  as  part  of  the  contract,  see 

Oxford  V.  Provand,  L,  R.2  P.  C,  156.    Dlstin-  supra  §  624  et  seq. 
guish  Chappell  v.  Gregory,  34  Beav.,  250.  (e)  Lamare  v.  Dixon,  L.  R.  6  H.  I..,  422. 

{d)  As  to  what  representations  wiil  in  equi-       (/)  Beaumont  v.  Dukes,  Jac,  414. 


456        FKY  ox  SPECIFIC  PERFOKMANCE  OF  CONTRACTS. 

tations,    ^vliicli  tlie  pliiintifif,  however,   never  carried  into 
effect,  (r/) 

ij  909.  We  may  h'ere  briefly  inquire  into  how  far  maps 
or  phms  of  the  property,  exhibited  by  the  vendor  at  the 
time  of  entering  into  contract,  form  representations  of  the- 
kind  w^e  are  now  considering.  (/<'-) 

§  910.  Where  tlie  parties  have  matured  their  agreement 
into  a  contract,  and  that  contract  is  silent  on  the  subject  of 
such  map  or  plan,  the  court  will  not  from  such  exhibition 
infer  a  contract. (/)  This  applies  alike  to  private  contracts 
and  to  special  Acts  of  Parliament,  so  that  notices  given,  and 
plans  and  sections  deposited,  are  not  to  be  used  in  constru- 
ing an  act  afterwards,  except  so  far  as  they  are  referred  to 
and  thus  incorporated  in  the  act  of  Parliament  itself,  (y) 
But  where  they  are  so  referred  to  and  incorporated,  effect 
must  be  given  to  them  according  to  the  terms  of  the  act.(^:) 

§  911.  Where  the  map  thus  exhibited  delineates  the  in- 
tended division  of  the  property  by  new  roads,  the  vendor 
may  not  afterw^ards  divide  the  land  in  a  manner  so  different 
as  to  attract  a  population  entirely  different  from  that  which 
would  have  been  produced  by  the  execution  of  the  plan 
proposed  by  the  map.(Z) 

§  913.  But  though  the  exhibition  of  a  map  may  bind  to 
this  extent,  it  will  not  oblige  to  an  exact  performance  of 
the  scheme  it  embodies.  Thus  where  a  plan  w^as  referred  to 
in  the  contract,  and  used  as  a  description  of  the  part  of  the 
property  in  question,  and  on  this  plan  the  measurement  and 
width  of  the  street  w^ere  marked,  but  there  was  nothing  in 
the  contract  wdiich  distinctly  pointed  out  that  part  of  the 
plan  as  binding  the  parties,  Lord  Langdale,  M.  R.,  held  that 
it  did  not  form  part  of  the  contract,  so  as  to  entitle  one 
party  to  relief  against  an  encroachment  on  the  width  of  the 
street,  (m) 

§  913.  In  another  case  the  particulars  referred  generally 

f<7)  Myers  V  Watson,  1  Sim.  N.  S  ,  523.  CI.   &  Fin.,  722;  Beardmer  v.  London  and 

(A)  Cf  cilave  V.  iJarding,  27  L.  J.  Ex.,  286,  North-Western  Kailway  Co.,  1  Mac.  &i^., 

as  to  the  effect  of  plans  on  (alleged)  implied  112.                           ,^      ,    ^              i  tw  i  „..„ 

erants  of  easements  ^k)  Att-Gen.   v.  Tewkshury  and  Malvern 

(i)  Feoffees  of  Heriot's  Hospital  v.  Gibson,  Railway  Co.,  1  De  G  J.  &  S.    423;   Little  v. 

2  Dow  301-  Squire  v.  Campbell.  1  My.  &  Cr.,  Newport,  Abergavenney,  and  Hereford  Rail- 

459.    Cf.  and  distinguish  Nene  Valley  Drain-  way  Co.,  12  C.  B    752.                       o-k  qo 

age  Commissioners  v.  Dunkley,  4  Ch.  1).,  1.  d)  Peacock  v.  Penson,  11  Beav.,  3.-)5,  361. 

wliere  the  plan  was  held  to  be  Incorporated  (m)  Nurse  v  Lord  .Seymour,  13  Beay.,  2^4. 

with  (though  not  referred  to  in)  the  contract.  Distinguish   Roberts  v.  Karr,  1  Paunt.,  495; 

(j)  North  British  Railway  Co.  v.  Tod,  12  Espley  v.  Wilkes.  L.  R.  7  Ex  ,  298. 


DEFAULT    OX    TAKT    OF   TJIE   PLAINTIFF.  457 

to  an  accompanying  jjlan,  and  on  tlie  plan  several  roads 
were  marked  out  so  as  to  provide  frontages  for  all  the  lots, 
and  the  lines  of  roads  were  marked  out  on  the  land  itself  in 
accordance  with  the  x^hm  :  Knight  Bruce,  V.  C,  held,  that 
in  the  absence  of  any  clause  in  the  particulars  or  conditions 
of  sale  i^roviding  for  any  rights  of  way  beyond  a  road  lead- 
ing into  the  nearest  highway,  such  road  was  all  that  the 
purchaser  was  entitled  to.  {n) 

§  914.  Where  the  sale  X)lan,  instead  of,  as  in  the  previous 
cases,  representing  an  intended  and  future  state  of  the  prop- 
erty, accurately  represents  it  in  its  actual  and  present  state, 
it  has  been  held  that  it  will  not  carry  the  case  higher  than 
a  view  of  the  prox3erty.  Therefore,  where  a  plan  rej^re- 
sented  a  well  on  lot  4  communicating  with  a  reservoir  on 
lot  2,  and  that  communicating  with  the  inn  which  was  on 
lot  1,  wiiich  the  plaintiff  purchased,  and  the  vendor  con- 
veyed lots  2  and  4  without  any  reservation  to  the  plaintiff 
of  a  right  to  a  flow  of  water  from  the  well,  the  plaintiff's 
demand  for  compensation  for  the  loss  of  the  water  was 
refused,  (o)  St.  Leonards,  however,  considei-ed  this  case 
open  to  observation.(j9) 

§  915.  (4)  In  the  averment  of  perfonnaiice  by  the  ]  Jain- 
tiff,  equity,  as  already  stated,  discriminates  between  the 
essential  and  the  non-essential  terms  of  a  contract :  and  to 
furnish  the  defendant  with  aground  foi' resisting  the  action, 
the  non-performance  of  the  plaintiff  must  be  a  term  impor- 
tant and  considerable. ('z)  The  Court  of  Chancery  fre- 
quently interfered  at  the  instance  of  a  party  avIio  might 
have  been  debarred  fiom  relief  at  Common  Law,  because 
unable  to  allege  performance  in  the  veiy  terms  of  the  con- 
tract, which  is  by  the  Common  Law^  essential. (/)  Thus,  for 
example,  where  A,  contracted  to  sell  property  to  E.,  and 
by  the  same  contract  it  was  also  stipulated  that  A.  should 
continue  tenant  from  year  to  year  of  the  land,  and  it  hap- 
pened from  embarrased  circumstances  he  was  unable  to  fill 
the  tenancj',  this  was,  from  the  determinable  nature  of  the 
holding,  held  to  be  a  matter  of  consideration,  and  so  not  a 

(n)  RaiKiall  v.  Hall,  4  De  G.  &  Sm.,  .S43  Reeves  v.  The  Greenwich  Tanning  Co.  Limi- 

(0)  Fewster  v   Turner,  11  L.  J.  Oh.,  161.  ted.  2  U   &  M..  hi. 

(p)  St.  I, eon.  Vend.,  20  (/•)  S<>e  per  Lord   Rcdesdale  In   Davis   t. 

(q)  Modlen   V.  Snowball,  31  L.   J.  Oh    44;  Hone,  2  soli  &  Lef  347;  supra,  §  29. 
10  \V.  U.   24.  affirming  S.   C.  29;   Ueav.,  641; 


458         FRY  ox  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

bar  to  specific  perforiiiance  of  the  contract  for  sale. (.9)  And 
all  the  cases  in  Avhich  the  court  grants  a  vendor  asking  for 
specific  performance  indulgence  in  the  making  out  of  his 
title, (0  f^v  allows  him  to  enforce  the  contract  with  com- 
pensation/?/) are,  of  course,  illustrative  of  the  principle 
now  before  us. 

§  016.  In  a  case  before  the  Privy  Council,  the  judgment 
may  at  first  sight  appear  to  go  so  far  as  to  assert  that  no 
default  of  performance  on  the  part  of  the  plaintiff  short  of 
that  Avhich  goes  to  the  whole  consideration  for  the  promise 
sued  on,  is  available  as  a  defense  against  specific  perform- 
ance. (?>)  But  probably  such  reading  is  incorrect  and  the 
intention  of  their  lordships  was  to  draw  the  distinction 
between  essential  and  non-essential  terms. 

§  !>I  7.  (5)  Where  that,  on  the  non-performance  of  which 
by  the  plaintiff  the  defendant  relies,  is  in  its  nature  a  col- 
lateral and  separate  contract,  or  is.  part  of  or  referable  to 
such  a  contract,  though  between  the  same  parties  and 
entered  into  at  the  same  time,  and  having  relation  to  the 
same  subject-matter  as  the  contract  which  the  plaintiff  seeks 
to  enforce,  the  court  will  not  consider  the  default  by  the 
plaintiff  in  resi^ect  of  the  one  contract  as  any  bar  to  the 
specific  performance  of  the  other,  though  such  default  may 
give  the  defendant  a  cross  right  of  action  on  legal  or  equit- 
able grounds,  {wf 

(s)  Lord  V.  Stcpbens.  1  Y.  &.  C.  Ex.,  222.  (_v)  Oxford  v  Provand,  L.  R.,  2  P.  C,  135; 

{t)  See  infra.  §  lS3fl  et  scq.  cf  T.amare  v.  Oixon.  L   R.,  6  H.  L.,  414. 

(ti)  See  inira,  §  1178  et.  seq.  (lo)  Phlpps  v.  Cliild,  3  Drew,  709. 

'  Conrlitwn  precedent  or  subsequent.']  In  a  conditional  contract  one  party  may 
fail  to  perform  the  condition.  The  contract  becomes  aJjsolute  as  soon  as  the 
condition  has  been  performed,  but  imtil  it  is  performed  it  cannot  be 
specifically  enforced.  Where  it  is  a  condition  precedent  the  estate  is  avoided 
by  not  permitting  it  to  rest  until  tlje  condition  is  literally  performed.  _  Where 
it  is  a  condition  subsequent,  its  non-performance  defeats  the  estate  bj^  divesting 
the  party  of  his  title.  It  is  very  material  to  notice  this  distinction  for  the 
reason  that  a  court  of  equity  "can,  upon  principle,  interfere  with  and  control 
the  effect  of  one  species  of  condition  and  not  of  the  other.  A  man  enters  into 
a  contract,  or  makes  a  deed,  or  settlement,  or  a  will,  and  he  agrees  to  grant  or 
devise  an  estate  upon  a  condition  which  he  declares  nuist  be  performed  before 
the  person  to  be  benefited  can  take  it.  No  court  of  law  or  equity  can  have 
a  right  to  say  that  the  condition  which  is  lawful  in  itself,  and  one  the  party  had 
a  right  to  impose.  ,<sha]l  be  dispensed  with.  In  order  to  do  this,  the  contract  or 
act  of  the  party  himself  must  be  annulled,  and  one.  created  by  the  court,  put 
in  its  place.  The  principle  whereon  the  court  is  to  act  in  relation  to  conditions 
subsequent  is  widely  different.  In  cases  of  this  sort,  if  a  breach  or  non- 
performance happens,  the  effect  of  which  is  to  work  a  forfeiture,  or  dive.st  an 
estate,  the  court,  acting  upon  the  principle  of  compensation  to  the  party  for  the 
injury  sustained  by  the  l)reach,  will  interpose  and  prevent  the  forfeiture.  On 
account  of  the  nature  of  conditions  subsequent,  they  are  said  to  fall  within  the 


DEFAULT   OX    PAIIT    OF   THE   PLAINTIFF,  459 

§  918.  Thus  where  A.  contracted  with  B.,  the  owner  of 
a  x>lot  of  land,  to  erect  a  villa  on  it,  and  to  keep  it  insured 
in  the  joint  names  of  A.  and  B.  in  the  county  tire  office,  and 
B.  agreed  as  soon  as  the  house  should  l)e  completed,  to  grant 
a  lease  of  the  plot  to  A.,  and  that  if  A.  should  not  per- 
form his  part,  the  contract  for  the  lease  should  l>e  void  ; 
and  the  contract  also  sti])ulated  that  ,A.  should  have  the 
option  of  jiurchasing  the  fee  within  two  years  ;  A  erected 
the  villa,  but  insured  in  the  wrong  office,  and  in  his  own 
name  alone,  and  then  brought  his  bill  for  a  sale  under  the 
option  to  purchase  ;  and  it  was  held  by  Lord  Roniilly,  M.  R., 
that  tliis  option  was  independent  of  the  right  to  a  lease,  and 
that  notwithstanding  the  plaintiff's  default  in  respect  of  the 
latter  right,  the  former  subsisted,  and  lie  accordingly  decreed 
a  specific  perf orma-nce.  (.t)' 

(x)  Green  v.  Low,  2-2  Beav.,  625. 

lenient  principle  l)y  wLicli  equitj'  relieves  against  penalties;  and  the  court  will 
onl_v  give  relief  where  compensation  could  be  made  in  damages  There  may 
even  be  cases  of  conditions  subsequent  unperformed,  in  wliich  the  court  will 
not  relieve  from  forfeiture  on  account  of  the  difficulty  of  ascertaining  with  any 
degree  of  certaintv  tlie  amount  or  adequatelv  of  compensation  to  be  allowed." 
McCoun,  Y.  C,  ill  Wells  v.  Smith,  2  Edw.  Ch.,  78. 

'  The  cases  at  law,  concerning  dependent  and  independent  covenants,  pro- 
ceed upon  tlie  same  principle  and  are  in  close  analogy  with  those  of  equity. 
Manning  V.  Brown,  1  Fairf.,  49,  is  an  authority  oC  tliis  kind.  A.,  there,  cove- 
nanted to  convey  to  B.  a  certain  lot  of  land,  if  certain  notes  of  hand,  given  at 
the  Sime  time,  pa^yable  at  a  future  day,  should  be  paid  at  maturity  by  B. ;  and 
it  was  further  agreed  that,  in  failure  of  payment  of  said  notes  by  B.,  the  agree- 
ment was  to  be  void,  B.  to  be  liable  to  pay  all  damages  that  should  have 
occurred  to  A.,  and  to  forfeit  all  that  should  previously  have  been  paid.  In  a 
suit  on  one  of  the  notes,  it  was  held  that  the  promise  on  the  notes,  and  the 
covenant  to  convi-y  were  independent,  and  that  a  suit  on  the  former  might  well 
be  maintained,  without  showing  a  conveyance  or  an  offer  to  convey.  Left- 
wich  V.  Coleman,  8  How.  Miss.,  107;  and  Hector  v.  Price,  6  Ala.,  301,  are 
decisions  to  the  effect,  that  an  action  will  lie  upon  a  note,  given  for  the  pur- 
chase money  of  land,  ]:)ayal)le  on  a  day  certain,  where  there  is  an  agreement  to 
to  convej'  b}^  deed  upon  the  pajnnent  of  the  note,  the  agreement  being  inde- 
pendent. And  where,  on  an  agreement  for  the  sale  of  land,  the  vendee  gave 
his  note  for  the  purchase  mouej',  payable  at  the  end  of  twelve  mouths,  and 
took  the  vendor's  penal  bond  to  make  him  a  "  lawful  title,  or  cause  it  to  be 
made,"  within  tlu;  same  period,  it  was  held,  that  the  note  and  the  bond  being 
wholly  separate  and  disconnected  with  eacli  other,  the  performance  on  the  one 
side  was  not  a  condition  precedent  to  the  performance  on  the  other,  and  unless 
there  had  been  some  stipulation  to  the  effect,  the  agreements  were  entirely 
independent.  Martin  v.  Bobo,  1  Speers,  26.  Nor  yet  are  mutual  contracts 
mutual  conditions,  when  each  goes  only  to  a  part  of  the  consideration  of  the 
other,  and  a  l)reach  of  eitlier  may  be  compensated  in  damages.  And,  there- 
fore, where  the  defendants  hired  of  the  plaintiff  two  slaves  at  certain  monthly 
wages,  and  tlie  plaintiff  agreed  to  permit  the  defendants  to  transport  his  cotton 
to  market,  at  a  c;ertain  stipulated  ral(i  per  bale,  in  payment  of  the  wages  of  the 
slaves,  it  was  held  that  the  stipulations  of  each  party  were  independent,  and 
that  the  plaintiff  might  recover  the  wages  of  the  slaves,  without  averring  that 
Jie  had  tendered  his  cotton  to  be  transported  to  market  by  the  defendants. 
Bice  V.  Sims,  3  Bailey,  82. 


460         FRY  ox  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

i$  019.  80,  where  in  a  deed  I'or  the  dissolution  of  partner- 
ship, one  partner  assigned  to  another  certain  foreign  shares, 
and  covennnted  for  further  assurance  ;  and  the  other  partner 
covenanted  with  the  former  for  indemnity  against  certain 
liabilities :  a  further  assurance  of  the  shares  became 
necessary,  and  on  a  bill  filed  to  enforce  specific  perform- 
ance of  tlie  covenant  to  that  effect,  it  was  held  by  Knight 
Bruce  nnd  Turner,  L.  J.  J.,  overruling  Lord  Roniilly,  M. 
R.,  that  a  breach  of  the  covenant  to  indemnify  which  the 
plaintiff  had  entered  into  with  the  defendant  w^as  no  defense 
to  the  suit.  The  tw^o  covenants  were  independent,  so  that 
the  joerformance  of  the  one  w^as  not  to  be  resisted  by  reason 
of  the  non-performance  of  the  other. {y) 

§  920.  (6)  A  defendant  who  has  waived  the  performance 
by  the  plaintiff  of  that  was  on  his  j)art  to  be  performed  can- 
not, of  course,  nse  the  nonperformance  as  a  defense ;  but 
the  burthen  of  proving  this  waiver  of  course  rests  on  the 
plaintiff.  (^) 

§  921.  Still  more  clearly,  if  possible,  is  non-performance 
by  the  plaintiff  excused  when  that  has  resulted  from  the 
neglect  of  default  of  the  defendant.  («)'  So  where  the  pur- 
chaser prevents  the  vendor  from  comjileting  his  title,  he  will 
Nbe  comjDelled  to  forego  an  objection  he  may  raise  on  the 
score  of  that  incompleteness.  (^) 

5<  922.  With  regard  to  infancy,  an  infant  heir  cannot 
avail  himself  of  his  disability  to  excuse  the  non-assertion  of 
his  right  under  an  executory  contract  made  with  his 
ancestor,  when  the  immediate  performance  of  his  part  of 
the  contract  is  essential  to  the  interest, of  the  other  j)arty  ; 
as,  for  examx)le,  of  a  contract  to  lay  out  money  m  building 
within  three  years,  (c) 

§  923.  (7)  We  shall  now  consider  how  far  the  impossi- 
bility of  performing  the  iDlaintiff 's  part  arising  without  any 
fault  or  default  on  his  part  furnishes  an  excuse  for  non-i:)er- 
formance.  In  those  cases  in  which  all  that  was  to  have 
been  performed  by  the  plaintiff  has  become  entirely  inca- 

(y)  Gibson  v    Golflsmid,  5  De  G.  M.  &  G.,  (b)  Murrcll  v.  Goodyear,  1  De  G.  F.  &  J.,. 

757;  reversing  S.  C,  18  Beav.,  584.  432  (S.  C  before  Stuart.  V.  C.  2  Giff.  51j. 

(z)  Lamare  v.  I'ixon,  L.  K  ,  6  II.  L  ,  414.  (c)  Griffiu  v.  Grillin,  1  Sch.  &  Lef.,  35-2. 
(a)  llotham  v.  East  India  Co.,  1  T.  R.,  638 

'  See  Stewart  v.  Raymond  Rail  Road  Co.,  7  S.  &M.,  568;  Tyler  v.  McCardle, 
9  id.,  2^0;  Kirby  v.  Harrison,  2  Ohio  (N.  S.),  326. 


DEFAULT    0:X   PART    OF   THE   PLAIISTTIFF.  461 

pable  of  being  executed,  the  plaintiflP  cannot  demand  the 
performance  by  the  other  party,  because  his  non-perform- 
ance is  a  total  failure  of  the  consideration  which  was  to  have 
moved  from  him. 

But  where  the  impossibility  refers  not  to  the  substantial, 
but  only  to  the  exact  and  literal  performance  of  tlie  con- 
tract, the  court  will  struggle  with  matfers  of  form  in  order 
to  do  complete  justice  between  the  parties  ;  but  it  will  care- 
fully avoid  going  so  far  as  to  make  a  new  contract  between 
theni.(r/)     Hence  arise  the  cases  on  compensation.(e) 

§  934.  As  to  the  cases  in  which  the  plaintiff  has  per- 
formed a  substantial  part  of  his  contract,  and  then  the 
remaining  part  has  become  impossible  by  reason  of  circum- 
stances not  dependent  upon  him  and  without  his  fault,  a 
distinction  has  been  drawn  between  those  cases  in  which  the 
plaintiff  has  not,  by  performing  that  part  of  the  contract 
which  he  has  performed,  altered  his  position,  and  those 
cases  in  which  he  has  so  altered  his  position  by  his  part  per- 
formance of  the  contract  by  the  other  party  in  the  former 
casp,  and  enforcing  it  in  the  latter. 

§  9S5.  This  distinction  rests  almost  entirely  on  the  author- 
ity of  Gilbert,  C.B.,  in  a  passage  in  his  "  Lex  Pr<Ttoria,"(/) 
but  has  been  approved  by  subsequent  writers, (/7)  and  seems 
worthy  of  attentive  consideration.  "  Here,"  says  his  Lord- 
ship in  the  j)assage  in  question,  '-it  is  to  be  noted  that  the 
plaintiff  that  exhibited  his  bill  wiion  the  foot  of  performing 
the  bargain  on  his  part,  ought  to  show  that  he  has  per- 
formed all  that  is  to  be  done  on  his  part,  or  is  ready  to  do 
it ;  for  where  any  part  (which  he  should  have  performed)  is 
become  impossible  to  be  performed  at  the  time  of  exhibiting 
his  bill,  then  he  can  have  no  specific  execution,  because  he 
cannot  specifically  execute  on  his  own  part :  as  in  the  case 
of  my  Lord  Feversham,  which  was  on  a  marriage  agree- 
ment, whereby  he  contracted  to  settle  the  manor  of  Holmly 
on  his  wife  and  the  heirs  of  their  bodies,  and  clear  it  of 
incumbrances,  and  settle  a  certain  maintenance  on  his  wife, 
and  likewise  sell  some  pensions  in  order  to  make  a  further 
provision  for  his  wife  and  the  issue  of  that  marriage ;  and 
Sir  George  Sandys  the  father-in-law,  agreed  to  settle  £3,000 

(rf)  Counter  v.  Macpherson,  5  Moo.  P.  C.  (/)  pp.  240-3. 

C,  83.  108.  {g}  1  Fonbl.   Eq.  Book  I.,  c.  6,  8.  3;  Story, 

(«)  See  infra,  Part  IV.,  chap,  ii.,  §  1.174  et  Eq.  Jur.,  s.  772. 
seq. ;  also  \>)rris  v.  Jackson,  3  Uiflf.,  396. 


4&2         IKY  0\  SPECIFIC  PEMFOIIMAXCK  OF  CONTRACTS. 

per  anmiiu  on  the  Lord  Feversbam  for  life,  remainder  to 
the  wife  for  life,  and  so  to  the  issue  of  the  marriage.  Lord 
Feversham  cleared  the  manor  of  Holmly,  settled  it  accord- 
inuly,  and  settled  the  separate  maintenance,  but  did  not 
sell  the  pensions,  nor  settle  the  further  provisions  :  the  wife 
died  without  issue,  and  the  Lord  Feversham  preferred  his 
bill  to  have  the  ,£'8,(X)(i.  per  annum  settled  on  him  for  life : 
but  decreed  because  Lord  Feversham  was  m  statu  quo  as  to 
all  that  part  of  the  agreement  which  he  had  loerformed,  and 
having  not  j^erformed  the  whole,  and  the  other  parts  being 
now  impossible,  and  no  compensation  being  possible  to  be 
adjusted  for  it,  he  had  no  title  in  equity  to  have  perform- 
ance of  Sir  George's  part  of  the  agreement,  since  such 
performance  could  not  be  mutual.  But  the  issue  of  Lord 
Feversham  might  have  been  relieved,  because  in  no  default." 
Lord  Feversham  v.  Watson.  Rep.  t.  Finch,  445,  2  Freem. 
25,  Skin.,  287. 

To  make  the  foregoing  statement  perfectly  clear,  it  should 
be  added  that,  in  the  settlement  made  by  the  plaintiff,  the 
reversion  expectant  on  the  default  of  issue  by  his  late  wife 
w'A's,  reserved  to  him  in  fee,  S(^  that  the  settlement  had  in 
the  event  ojjerated  nothing.  {It) 

§9"26.  "But  if,"  continues  the  Lord  Chief  Baron,  "a 
man  has  performed  so  much  of  his  part  of  the  agreement  as 
he  is  not  in  statu  quo^  and  is  in  no  default  for  not  perform- 
ing the  residue,  then  he  shall  have  a  specific  execution  from 
the  other  party  of  the  agreement :  as  if  a  man  has  con- 
tracted for  a  portion  with  his  wife,  and  has  agreed  to  settle 
upon  the  wife  and  her  issue,  lands  of  such  a  value  free  from 
incumbrances,  and  he  sells  part  of  his  land  to  disincumber,, 
and  is  going  on  to  disincumber  and  settle  the  rest :  then  if 
the"  wife  dies  without  issue  before  the  settlement  be  actually 
made,  yet  he  shall  have  a  jjortion,  because  he  cannot  be  in 
statu  quo^  having  sold  part  of  his  lands,  and  there  is  no 
default  in  him,  since  he  Avas  going  on  to  disincumber  and 
settle  the  rest ;  therefore  the  accident  of  the  death  of  his 
wife  doth  not  alter  his  riglit  to  his  wife's  portion."  Mere- 
dith V.  Wynne,  Eq.  Abr.  70,  p.  15  ;  Gilb.  Eq.  Rep.,  70  ;  Free. 
Ch.,  312  ;  2  Yerne.,  448.' 

(i)  Powell  on  Contracts,  22. 
'  The  dcctrine  seems  to  be  well  stated  in  Breckenridge  v.  Clinkinbeard,  3- 


DEFAULT    ON   PART    OF   THE   PLAINTIFF.  463 

§  937.  To  prevent  error,  it  may  be  well  to  observe  that, 
as  regards  marriage  contracts,  the  rule  under  consideration, 
as  well  as  many  other  rules  relating  to  the  specific  perform- 
ance of  purely  executory  contracts,  does  not  apph^.  ' '  There 
is,"  said  Lord  Hardwicke,  "a  difference  between  agree- 
ments on  marriage  being  carried  into  execution  and  other 
agreements  ;  for  all  agreements  besides  are  considered  as 
entire,  and  if  either  of  the  parties  fail  in  performance  of  the 
agreement  in  part,  it  cannot  be  decreed  in  specie,  but  must 
be  left  to  an  action  at  law :  in  marriage  agreements  it  is 
otherwise,  for  though  either  the  relations  of  the  husband  or 
wife  should  fail  in  the  performance  of  their  part,  yet  the 
children  may  compel  a  performance  :  if  the  mother's  father, 
for  instance,  hath  agreed  to  give  a  portion,  and  the  husband's 
father  hath  agreed  to  make  a  settlement,  though  the  moth- 
er's father  do  not  give  the  portion,  yet  the  children  may 
compel  a  settlement,  for  non-performance  on  one  part  shall 
be  no  impediment  to  the  children's  receiving  the  full  bene- 
fit of  the  settlement ;  so  if  there  be  a  failure  on  the  part  of 
the  father's  relations,  it  is  the  same."(/) 

The  distinctions  in  this  respect  as  regards  marriage  con- 
tracts are  numerous,  but  they  are  not  properly  within  the 
scope  of  this  volume,  they  need  not  here  be  further  noticed* 

2.   T7te  performance  of  future  acts. 

§  928  We  may  now  consider  the  obligation  which  lies 
on  the  plaintiff,  in  an  action  for  specific  performance,  of 
being  ready  and  willing  to  perform  all  acts  that  on  his  p^rt 
yet  r.^main  to  be  i^erformed. 

§  9*39.  On  the  ground  of  this  obligation,  trustees  in 
bankruptcy  are  not  liable  as  plaintiffs  to  enforce  a  contract 
entered  into  by  the  bankrupt,  which  would  have  involved 
covenants  on  his  part,  unless  they  will  personally  enter 
into  the  covenants  into  which  the  bankrupt  would  have 
entered  :(j'*)  whereas  where  specific  performance  is  sought 

(i)  In  Harvey  v.  Ashley,  3  Atk.,  611;   Of.  ham  v.  Joyce,  3  Ves.,  168;  Powell  v.  Lloyd,  3 

Lee  V.  Lee,   4  Ch.  D.,  175;  Jeston  v.  Key,  19  Y.  &  J.  372;  per  Grant  M.  K.  in  Weatherall  v. 

W.  R.   342,  804.  Geering,  12  Ves  ,  513. 

U)  Ex  parte  Sutton,  2  Rose,  86;  Willing. 

Litt.,  127.  It  is  there  said  that  where  a  party  claims  specific  performance  of  a 
contract  and  although  he  has  not  wholly  performed  his  part,  is  in  no  default  as 
to  the  residue,  but  cannot  be  placed  in  italic  quo,  he  is  entitled  to  a  specific  per- 
formance, but  is  not  so  entitled  when  in  default,  and,  when  by  receiving  com 
pensation  for  what  he  has  done,  he  may  be  placed  in  statu  quo.  See,  also' 
Hays  V.  Hall,  4  Porter,  374;  McCorck/e  v.  Brown,  9  S.  &  M.,  167. 


464        FRY  ON  SPECIFIC  PERFOinfANCE  OF  CONTRACTS. 

not  by,  but  against,  persons  having  a  tiduciary  interest  only, 
they  kre  bound  to  covenant  only  so  as  to  bind  the  property 
and  not  themselves  personally. (A*) 

§  930.  And  so  of  bankruptcy  ;  if  the  plaintiff  be  the 
vendor,  the  commission  of  an  act  of  bankruptcy,  though 
without  proof  of  the  existence  of  any  debt  to  support  a 
petition,  is  a  bar  to  an  action  for  specific  performance, 
because  the  plaintiff  may  be  incapable  of  conveying  the 
estate,  which  may  belong  not  to  him,  but  to  his  trustee. (Z) 
If  on  the  other  hand  the  plaintiff  be  the  purchaser,  he  can- 
not enforce  the  contract,  because  he  is  incapable  of  so  pay- 
ing the  money  to  the  vendor,  as  that  the  vendor  shall  be 
certain  of  being  able  to  retain  it  against  the  trustees,  (m) 

§931.  Bankruptcy  does  not  of  itself  discharge  a  con- 
tract, either  for  the  sale  of  an  estate  of  inheritance  or  for  a 
lease ;  for,  with  regard  to  the  latter,  the  trustee  may  cove- 
nant in  the  same  manner  as  the  bankrupt  woidd  have  been 
bound  to.{n)  By  the  146th  section  of  the  statute  12  &  13 
Vict.,  c.  106,  the  vendors  of  lands  might  compel  the 
assignees  to  elect  whether  they  would  abide  by  or  decline 
an  agreement  for  sale  :(o)  and  now  by  the  23d  section  of  the 
bankrupt  act,  1869,  where  any  property  of  the  bankrupt 
acquired  by  the  trustee  consists  of  unprofitable  contracts, 
the  trustee,  notwithstanding  he  has  endeavored  to  seU,  or 
has  taken  possession  of  such  property,  or  exercised  any  act 
of  ownership  in  relation  thereto,  may  by  writing  under  his 
hs^d  disclaim  such  property,  and  thereupon  the  contract 
shall  be  deemed  to  be  determined  from  the  date  of  the  order 
of  adjudication. 

It  has  already  been  noticed  that  specific  performance  can- 
not be  enforced  against  a  trustee  in  bankruptcy  or  liquida- 
tion without  his  consent.  (^) 

§  93*2.  So  the  insolvency  of  the  plaintiff  is  a  ground  of 
defense  -.{q)  and,  to  constitute  this  defense  in  the  case  of  a 
continuing  contract  as  a  lease,  it  is  not  necessary  that  the 

{k  (Page  V.  Broora.  3  Beav.,  83G;  Phillips  (m)  Franklin  v.  Lord  Brownlow.  14  Ves., 

V.  Everarcl,  5  Sim.,  102;  Stephens  V.  Hotham,  550.                               .      „  ^. 

IK    &  J  ,  571 ;  a  i<!  see  further,  as  to  cove-  (n)  Brooke  v.  Bewitt,  3  \  es.,  2o3. 

nants  by  trustu'j:i,    \Vorley  v.   Frampton,  5  (o)  Of.  Buckland  v.  Papillon,  L.  R.,  2  Ch., 

Ha..  5fi  •;  OiiBlovV  V.  i..or.lL 'Tidesborougb,  1(1  67.                               ^    ,    ^- .^r  t,    r.^-, 

Ua  .    G7;    Cooper  Mlnia?  Co.  v.   Beaci;.   13  ';))  Halloway  v.  lork,  2.i  W.  R.,627;  supra, 

Beiv.,  418;   Hodges  v.    Bla>rravc,  18  Beav.,  ? -•^■'i.  ^       ^.           „,     w      •,   «       s,  ir     a-h  . 

4(H;  Harev.  Burge3,4  K.  &  J.,45.  {qi  Crosbie  v.  Tooke,  1  My.   &  K.,  431, 

(0  Lowes  V.  Lush,  14  Ves.,  547;  Of.  McNal-  Price  v.  Assheton,  1  Y.  &  C.  Lx.,  441. 
ly  V.  Gradwell,  16  Ir.  Ch.  R.,  512.  518. 


DEFAULT   ON   PART   OF  THE   PLAINTIFF.  465 

plaintiff  should  be  proved  to  have  given  up  all  his  property 
for  the  benefit  of  his  creditors,  but  there  must  be  proof  of 
general  insolvency,  so  as  to  show  that  the  plaintiff  is  not  in 
a  situation  to  perform  the  covenants  on  his  part.(r)'  Thus 
Lord  Eldon,  remarking  on  the  insolvency  of  an  intended 
lessee  as  being  an  objection  of  more  or  less  weight  depend- 
ing on  the  circumstances,  in  the  case  then  before  him  dis- 
solved an  injunction  against  an  ejectment  by  the  land- 
lord. (5) 

§  9S3.  How  far  insolvency  would  be  an  objection,  if  the 
j)laintiff  had  subsequently  become  affluent,  does  not  ai3pear 
to  have  been  decided.  (^) 

§  934.  Where  the  interest  under  a  contract  has  been 
assigned,  the  insolvency  of  the  original  contractor,  who  is 
the  assignor,  is  no  defense,  though  that  of  the  assignee 
would  be.(w) 

§  935.  On  like  grounds,  the  felony  of  a  i)laintiff  would 
be  a  bar  to  specific  performance.  (^) 

§  936.  And  the  same  principle  is  illustrated  by  a  case 
where  the  deeds  were  destroyed.  It  was  a  suit  by  a  vendor 
on  an  ordinary  contract  for  sale  of  lands:  in  such  a  contract  is 
implied,  as  an  essential  term  on  the  part  of  the  vendor,  the 
proof  of  the  due  execution  of  the  deeds  which  constitute  his 
title,  and  the  delivery  up  of  them  to  the  purchaser :  the 
deeds  having  been  subsequently  destroyed  by  fire,  the 
performance  of    this  term  by  the  plaintiff  was  rendered 

(r)  Nealev.  Mackenzie.  1  Ke,  474;  Willing-  cf.  Neale  v.  Mackenzie,!  Ke.,  474;  McNally 

ham  V.  Joyce,  3  Ves  ,  168;  McNally  v.  Grad-  v.  Gradwell,  16  Ir.  Ch.  R.,  512,  519.  .. 

well,  16  Ir.  Ch.  R.,  512,  519.  (M)  Crosbie  v.  Tooke,  1  My.  &  K.,  431. 

(s)  Buckland  v.  Hall,  8  Ves.,  92.  (v)  Willingham  v.  Joyce,  3  Ves.,  168. 

(0  Price  v.  Assheton,  1  Y.  &  C.  Ex.,  82,  91; 

^  Insolvency  of  a  party  to  an  action  for  specific  performance.'}  In  England  the 
law  appears  to  be  that  "  upon  the  sale  of  a  bankrupt's  estate  he  is  usually  made 
to  convey  and  covenant  for  title.  His  covenants,  however,  are  obviously  of 
little  value,  and  it  would  seem  that  he  cannot  be  compelled  to  execute  a  con- 
veyance. But  the  court  of  bankruptcy  is  empowered,  upon  the  application  of 
the  assignees  or  of  the  purchaser,  if  the  bankrupt  shall  not  try  the  validity  of 
the  adjudication,  or  if  there  shall  have  been  a  verdict  at  law  establishing  its 
validity,  to  order  the  bankrupt  to  join  in  the  conveyance,  and  if  he  do  not  exe- 
cute it  within  the  time  directed  by  the  order,  then  he,  and  all  persons  claiming 
under  him,  will  be  estopped  from  objecting  to  such  conveyance,  and  all  estate, 
right  or  title  which  he  had  in  the  property  will  be  as  effectually  bound  as  if 
such  conveyance  had  been  actually  executed  by  him."  Dart  on  Ven.  and  Pur., 
250,  251;  Lower  v.  Lush,  14  Ves.,  547. 

Insolvency  of  party,  dsmand.}  In  an  action  for  specific  performance,  where 
no  demand  has  been  made,  it  is  not  sufficient  to  aver  and  prove  that  the  de- 
fendant is  insolvent.  BeU  v.  Thompson,  34  Ala.  633;  Carter  v.  Thompson,  41 
id.,  375. 

30 


466        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS, 

impossible,  and  the  contract  could  not  be  specifically  per- 
formed. (?o)' 

(to)  Bryant  v.  Rusk.  4  Russ  ,  1 ;  cf.  Moulton  secondary  evidence  of  the  execution  of  the 
T.  Edmonds,  1  De  (i  F.  &  J.,  216,  where  the    missing  deeds  was  held  sufficient. 

'  When  the  deed  must  be  delivered.]  In  Birdsall  v.  Waklron.  2  Ed.'s  Ch.,  315, 
the  vice  cbaucellor  said,  "the  court  will  not  order  purchase  money  to  be  paid 
before  a  title  is  given,  unless  under  special  circumstances,  such  as  taking  pos- 
session contrary  to  the  intention  or  against  the  will  of  the  vendor;  or  where  the 
purchaser  makes  frivolous  objections  to  the  title,  or  throws  unreasonable  obsti- 
cles  in  the  way  of  completing  the  purchase,  or  is  exercising  improper  acts  of 
ownership  by  which  the  property  is  lessened  in  value."  See,  also,  Van  Campen 
V.  Knight,  63  Barb.,  205. 

Implied  offer  of  performance.']  The  offer  of  the  party  making  the  demand  to 
perform  his  part  of  the  agreement  is  implied,  and  where  the  other  party  refuses 
to  comply  this  dispenses  with  the  necessity  of  anj'  other  offer.  Ramson  v. 
Johnson,  1  East,  208;  Finney  v.  Ashley,  15  Pick.,  546.  See,  however,  Eng- 
lander  v.  Rogers,  41  Cal ,  420. 


ACTS  IN  COKTRAYENTION  OF  THE  CONTRACT.    467 


CHAPTER  XXI. 

OF  ACTS  IN  CONTRAVENTION  OF  THE  CONTRACT. 

§  937.  In  the  last  chapter  we  considered  cases  in  which 
"the  plaintiff  had  disentitled  himself  by  defanlt  on  his  part : 
we  shall  now  consider  the  closely  allied  cases  where  he  has 
disentitled  himself,  not  by  default  merely,  but  by  acts  in 
fraud  or  contravention  of  the  contract,  or  at  variance  with 
it,  or  tending  to  its  rescission  and  the  subversion  of  the 
relation  established  by  it.  For  where  the  party  to  a  con- 
tract who  asks  the  intervention  of  the  court  for  its  specific 
execution  has  been  guilty  of  such  conduct,  that  circum- 
stance may  be  put  forward  as  a  defense  to  the  action. 
Sometimes  the  facts  may  be  evidence  of  a  mutual  agreement 
between  the  parties  to  rescind  the  contract :  but  even  where 
not  amounting  to  tliis,  they  may  be  sufficient  to  disentitle 
the  plaintiff  to  ask  for  the  intervention  of  the  court  in 
specific  performance. 

§  938.  Still  more  plain  is  the  case,  if  the  acts  be  such  as 
would  have  worked  a  forfeiture  of  all  benefit  of  the  contract 
if  it  had  been  executed ;  it  would  be  idle  for  the  court  to 
compel  a  grant  of  that  which,  if  granted,  would  have  been 
forfeited,  (a) — to  create  a  legal  relation  which,  if  created, 
would  be  immediately  dissoluble. (&)' 

§  939.  The  cases  by  which  this  principle  is  most  exten- 
sively illustrated  are  on  contracts  for  leases.  With  regard 
to  these,  it  is  well  established  that  where  a  p)erson,  holding 
under  an  agreement,  commits  waste,  treats  the  land  in  an 
unhusbandlike  m.anner,  or  acts  in  breach  of  covenants  which 
would  be  contained  in  the  lease,  and  for  which  acts  a  right 
of  re-entry  would  accrue  to  the  landlord,  such  i^erson  can- 

(a)  See  per  Lord  Romilly,  M.  R.,  iu  Lewis        (b)  Per  Turner,  V.C,  In  Gregory  v.  Wilson 
V.  Bond,  IS  Beav  ,85  9  Ha.,  687. 

'  Foi'feiture  of  estate.']     Equitj^  will  not  enforce,  a  forfeiture     Warner  v.  Ben- 
nett, 31  Conn.,  461;  Leffoyr  v.  West,  2  Ind.,  514;  Smith  v.  Jewett,  40  N.  H 
530;  White  v.  Port  Huron  R.  R.  Co.,  13  Mich.,  356;  Fitzhugh  v.  Maxwell,  34 
id.,  138;  Orr  v.  Zimmerman,  63  Mo.,  73;  Palmer  v.  Ford,  70lll.,  369;  Beecher 
V.  Beecher,  43  Conn.,  556. 


468        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

not  enforce  a  specific  performance  of  the  contract,  (c)    The 
same  has  been  held  in  respect  of  covenants  to  repair. (cZ)' 

^  940.  It  seems  that  even  where  the  lease,  when  executed, 
would^  contain  no  provision  for  re-entry,  yet  such  acts, 
when  amounting  to  a  forfeiture,  as  for  example,  a  gross  case 
of  waste,  whicii  is  in  all  cases  a  forfeiture  of  the  place 
wasted,  would  prevent  a  specific  performance  of  the  con- 
tract {e) 

§941.  In  order  that  acts  may  thus  be  a  bar  to  the 
plaintiff's  relief,  they  must,  it  has  been  said,  be  gross  and 
willful. (/)  That  expression  seems  to  have  been  originally 
applied  to  cases  in  which  the  breaches  would  not  work  a 
forfeiture  of  the  legal  interest.  (^)  If  applicable  at  all  to 
cases  where  there  would  be  a  proviso  for  re-entry  for  breach, 
it  seems  to  mean  that  the  acts  must  be  (1)  Such  as  would 
work  a  forfeiture  at  common  law,  and  (2)  Such  as  would 
not  justify  or  permit  relief  against  the  forfeiture  in  a  court 

of  equity. 
S  943.  Where  the  court  of  chancery  found  such  a  conflict 

fr\  VPr  T.ord  Eldon  In  Hill  v.  Barclay,  18  (e)  See  per  Lord  EUlon  in  Duke  of  Somer- 

\7-p«      fiV    Lewis   V.    Bond,    18    Beav.,    85;  set  v  Gourlay,  1  V.  &  B.,  73. 

IrezoS'v   WiTson,  9  Ha  .  683.  (/)  Parker  v.  Taswell.  2  De  G.  &  J.,  559, 

fd)  Nunn  V.  Truscott,  3  De  G.  &  Sm.,  304.  573.                                   -  ^  r>    .o. 

i-"^  nu""  »•  (^)  Hare  v.  Burges,  o  W.  R  ,  585. 


1  JoD  V  Banister,  39  Eng.  Law  and  Eq.,  599,  is  an  analogous  case,  though 
not  concemin"-  specific  performance.  The  case  was  this:  In  a  lease  of  copy- 
hold house  property  for  twenty-one  years,  the  lessee  covenanted,  amongst  other 
thino-s  to  pay  the  rent,  keep  in  repair,  and  insure,  etc.,  and  the  landlord  cove- 
TiRnt'ed  that  he  would,  at  the  expiration  of  the  term  of  twenty-one  years  (pro- 
vided all  arrears  of  rent  should  then  have  been  paid,  and  all  the  covenants 
should  then  have  been  well  and  truly  performed  and  kept),  at  the  request 
in  writin^^  of  the  lessee,  grant  a  new  lease  of  the  premises  for  a  further  term  of 
twentv-one  years,  at  the  same  yearly  rent,  and  subject  to  the  proviso  and  agree- 
ments in  the  same  indenture  contained  (including  the  covenant  for  renewal), 
and  so  from  time  to  time  upon  the  expiration  of  every  subsequent  term  of 
twentv-one  years,  provided  such  request  in  writing  should  be  given  as  afore- 
liid  The  lessee  expended  large  sums  of  money  in  building  houses  on  the 
T)remises  and  at  the  expiration  of  the  first  twenty-one  years  a  new  lease  was 
^ranted  in  the  same  terms  for  twenty-one  years.  In  both  leases  there  were  the 
usual  covenants  for  re-entry  on  breach  of  any  of  the  covenants.  Some  months 
before  the  expiration  of  the  second  term  of  twenty-one  years  the  lessee  gave 
notice  in  writing  that  he  would  require  a  renewal.  At  that  time  one  of  the 
houses  was  much  out  of  repair,  and  the  lessee  allowed  it  to  renaain  out  of  re- 
nair  on  the  ground  that  from  communications  with  the  lessor  it  was  doubtful 
whether  a  new  lease  would  be  granted,  in  consequence  of  an  alleged  forfeiture, 
bv  reason  of  having  failed  to  keep  the  fire  insurance  up  for  a  few  days.  Held, 
first  that  the  condition  precedent  for  the  present  renewal  was  twofold— request 
in  w'ritin"-  and  compliance  with  the  covenants;  and  that  the  double  condition 
was  not  confined  to  the  first  renewal,  but  applied  loties  quoties.  Secondly,  that 
the  court  could  not  grant  an  injunction  to  the  lessee,  to  restrain  the  lessor  from 
recovering  in  ejectment,  because  of  the  lessee's  breaches  of  contract  in  not  re- 
pairing the  premises  within  a  reasonable  time. 


ACTS   IN   CONTEAVENTIOlSr   OF   THE   CONTRACT.  469 

of  evidence  as  left  it  in  doubt  whether  there  had  been  such 
a  breach  of  covenant  as  to  render  it  proper  and  expedient 
to  refuse  specific  performance  on  that  ground,  it  took  the 
■course  of  directing  the  lease  to  bear  the  date  of  the  con- 
tract, and  leaving  the  parties  to  settle  their  legal  rights  at 
law.  (7^) 

§  943.  It  follows  from  what  has  been  said  that  three 
•classes  of  cases  fall  to  be  considered,  as  arising  out  of  con- 
tracts for  leases. 

(1)  Where  the  acts  complained  of  have  led  to  the  refusal 
of  relief : 

(2)  Where  they  have  not  led  to  this  refusal :  and 

(3)  Where  the  relief  has  been  granted  and  the  question  of 
breach  left  for  decision  at  common  law. 

1.    Where  tlie  acts  comjylained  of  have  led  to  refusal  of  spe- 
cific j)erformance. 

§  944.  In  Thompson  v.  Guyon(/)  a  lease  had  been  granted 
with  a  proviso  for  re-entry  on  breach  of  any  of  the  cove- 
nants, and  a  covenant  to  grant  a  further  term  at  the  end  of 
the  original  term,  if  it  should  not  have  been  sooner  deter- 
mined by  the  lessee's  acts  or  defaults:  the  lessee  paid  all 
his  rent,  and  continued  in  possession  to  the  end  of  the  term, 
but  had  in  fact  committed  breaches  of  covenant  during  the 
term,  of  which  the  lessor  was  not  cognizant  till  after  its 
•determination  :  a  bill  for  specific  performance  of  the  cove- 
nant to  renew  was  dismissed,  and  an  injunction  against  an 
•ejectment  was  refused,  on  the  ground  that  the  lessor  ought 
not  to  be  placed  in  a  worse  condition  at  the  expiration  of 
the  term  than  he  would  have  been  if  he  had  known  of  the 
breach,  and  availed  himself  of  it  during  the  term. 

§  945.  In  Gregory  v.  Wilson(y)  possession  had  been 
taken  under  a  contract  for  a  lease :  breaches  were  alleged 
of  the  covenants  which  should  have  been  inserted  in  the 
lease  to  insure  and  also  to  repair :  it  was  contended  as  to 
the  first  that  the  receipt  of  rent  after  knowledge  was  a  waiver 
of  all  the  breaches,  but  the  court  held  such  waiver  to  have 
no  longer  operation  at  law  than  on  the  breaches  antecedent 
to  the  receipt,   and  not  to  preclude  the  effect  of  the  sub- 

{h)  Rankin  v.  Lay,  2  De  G.  F.  &  J.,  65.  See       (j)  5  Sim.,  &5. 
Infra,  §  954  et  seq.  (^ )  9  Ha.,  683. 


470         FRY  ox  SPECIFIC  PEUFOU.M ANCE  OF  CONTRACTS. 

sequent  breaches  of  the  continuing  covenant :  as  to  the 
breaches  of  the  covenant  to  repair,  it  was  urged  that  they 
were  neither  wilful  nor  obstinate,  and  that  accordingly  they 
might  be  relieved  against  in  equity  :  but  the  court  held  that 
as  they  were  not  attributable  to  mistake  or  accident,  and 
were  persisted  in,  they  were,  in  the  contemplation  of  the 
court,  willful  and  obstinate.  The  bill  was  accordingly  dis- 
missed. 

§  94<».  In  another  case  the  defendant  was  lessee  under  a 
restrictive  covenant  against  carrying  on  a  beer  shop.  The 
plaintiff  got  a  contract  from  the  defendant  for  a  sub-lease 
with  knov/ledge  of  defendant's  title  and  of  the  covenant. 
The  plaintiff  entered  under  the  contract,  and  persisted  in 
carrying  on  a  beer  shop.  His  bill  for  specific  performance 
was  dismissed  with  costs.  (A*) 

2.  Cases  loJiere  relief  lias  not  been  refused. 

%  O-iT.  Tiiere  may  be  cases  of  breach  of  covenant  for 
which  merely  nominal  dama,ges  could  be  obtained,  or  there 
may  be  cases  where  a  breach  having  been  committed,  may 
have  been  waived  :  and  in  favor  of  such  cases  an  exception 
may  be  made  to  the  genei-alrule  that  the  plainrifi  must  prove 
performance  of  the  contract  on  his  i3art.(Z)  On  this  prin- 
ciple, Jessel,  M.^E,.,  in  a  recent  cise  held  that  trilling 
breaches  by  a  husband  of  the  covenants  on  his  part  in  a 
separation   deed   did   not    debar   hini   from    enforcing    the 

deed.(?/0 

§  948.  But  as  regards  breaches  of  covenant  under  con- 
tracts for  leases,  it  seems  that  the  breach  which  the  court 
would  neglect  must  be  either  such  a  breach  as  would  not 
work  a  forfeiture  at  common  law,  or  such  that  the  legal  for- 
feiture would  not  be  relieved  against  in  a  court  of  equity  : 
for  the  court  will  not  relieve  more  readily  whilst  the  whole 
thing  rests  in  contract  than  it  will  after  the  legal  relation 
has  been  actually  ci'eated.(?i.)' 

(A)  T>e.wis  V.  F.)n<l,  IS  BPav.,  85.  (m)  Be-aiit  v.  Wood,  12  C.h    P.,  B05. 

kI)  Walker  v.  Jeffreys,  l  11a  ,  a41.  3V2.  (-)  Gregory  v.  WiUou,  9  Ha..  083. 


'  Breach  "f  condition  precedent;  rule  an  to  relief .']  Scudder,  J.,  said  in  Grigg 
V.  Luudis  21  N.  J  E^i  ,  4v)-l::  •'Penalties,  forfeitures  and  re-entries,  for  condi- 
tions broken,  are  not  favored  in  equit3%  and  constitute  a  large  branch  of  equita- 
ble relief.  Usually  they  are  held  to  be  securities  for  tiie  payment  of  money  and 
the  performance  of  conditions,  and  where  compensation  can  be  made  for  non- 


ACTS  IN  CONTRAVENTION  OF  THE  CONTRACT.     471 

§  949.  In  one  case  a  lessor  of  mines  covenanted  to  grant 
a  furtlierterm,  and  the  lessee  covenanted  to  work  the  mines  : 
on  a  suit  by  the  lessee  for  a  specific  performance  of  the 
covenant  to  grant  a  further  term,  it  appeared  that  the  lessee 
had  not  worked  the  mines  in  consequence  of  their  being 
drowned  out :  the  court,  though  it  did  not  decide  the  point, 
inclined  to  think  that  this  would  be  no  bar  to  relief,  (o) 

§  950.  The  case  of  Parker  v.  Taswell(j??)  may  usefully  be 
consulted  as  the  law  bearing  on  this  question  was  there 
much  considered,  but  the  court  came  to  the  conclusion  that 
according  to  the  true  construction  of  the  contract  there  had 
been  no  breach  of  covenant. 

S  951  Is  reo-ards  all  cases  where  the  landlord  is  defend- 
ant  and  raises  an  objection  on  the  ground  of  breach  of  cove- 
nants which  ought  to  be  in  the  lease,  if  the  plaintiff  shows 
that  the  landlord  never  complained  before  action,  the  land- 

(o)  Walker  V.  Jeffreys,  1  Ha.,  341.  (.p)  2  De  G.  &  J.,  .^oO. 

payment  and  uon-perfonnance,  equity  will  relieve  against  the  rigid  enforcement 
of 'the  contract.  This  is  u[)on  the  principle  that  a  court  of  equity  is  a  court  ot 
conscience  and  will  permit  nothing  to  be  done  within  its  jurisdiction  which  is 
unconscionable.  But  it  is  not,  the'i-efore,  to  be  supposed  that  a  court  of  equity 
will  lightly  dispense  with  contracts  made  between  competent  parties  and  sub- 
stitute other  agreements  more  in  accordance  with  variable  rules  of  right  and 
conscience.  Every  presumption  will  be  made  in  favor  of  such  contracts,  and 
thev  will  be  enforced  according  to  the  intention  of  the  parties  expressed  and  irn- 
plied,  unless  it  can  be  shown  that  thereby  some  hardship  or  wrong,  not  within 
the  presumed  contemplation  of  the  parties  at  the  time,  will  result  froiu  such 
enforcement."  See,  also.  Livingston  v.  Tompkins,  4  John  's  Ch.,  4:Jl ;  2  btory  s 
Eq.  Juris.,  §§  1314,  1816. 

Breach  of  condition ;  subsequent  relief.^  Where  compensation  can  be  made 
for  the  failure  of  exact  performance,  courts  of  equity  have  in  general  relieved 
ao-aiust  forfeitures  which  arose  from  the  breach  of  a  condition  subse(iuent. 
Popham  V.  Bamptield.  1  Vern.,  79;  Woodman  v.  Blake,  2  id.,  222;  Walker  v. 
Wheeler,  2  Conn.,  299. 

Comlitionsi  imcedent  arid  subsequent  Jiou- (IMinguished.^  There  are  no  iech- 
nical  words  by  which  conditions  precedent  and  sulisequent  may  be  dis- 
tinguished from  each  other.  It  is  matter  of  construction  and  depends  upon 
the'partv  creatino-  the  estate,  whether  a  condition  is  one  or  the  other.  4  Kent  s 
•Com  124-  I  Te'rm  li  .  G4o;  2  Bos.  ct  Pull.,  2'.)o;  Finlay  v  King.  3  Peters, 
346;  Nicoli  v.  New  York  and  Erie  R.  R.  Co.,  12  N-  Y.,  121;  Underhdl  ^  Sara- 
tO"-a  R  R  Co..  20  id.,  4.')5;  Bennett  v.  Strong,  26  Miss  ,116;  Roger  v.  Walker, 
1  Wis  ,  527.  For  a  most  instructive  case,  presenting  a  learned  discussion  upon 
the  distinction  between  conditions  precedent  and  subsequent  in  contracts  or 
covenants  see  Roberts  v.  Brett.  6  C.  B.  (N.  S.),  (ill.  The  mum  test,  with 
respect  to  these  conditions,  is  whether  the  vesting  of  the  estate  granted  by  ihe 
instrument  in  Avhich  they  are  contained  is  postponed  until  the  happening  ot  the 
contin"-ent  event  forming  the  condition,  or  is  to  be  divested  by  it.  1  owJe  v. 
Palmer  1  Rob  487.  The  estate  is  not  divested  by  the  breach  ot  a  ctmdition 
subsequent  in  such  a  case;  the  grantor,  or  his  heirs,  have  the  right  of  re-entry 
and  this  may  be  waived  Ludlow  v.  New  York  and  Harlem  K  R.  <- "•••'* 
Barb.,  44U;  Rhoenir  v.  Com'rs  of  Emigration,  12  How.  Pr.,  1;  att  g  1  Abb. 
Pr.,  466. 


472        FRY  ON  SPECIFIC  PERFOKMANCE  OF  CONTRACTS. 

lord  must  j)rove  a  strong  case  to  get  the  benefit  of  his 
objection.  («/) 

S  05»2.  In  Gordon  v.  Smart, (^')  where  a  contract  to  grant 
a  building  lease  had  been  entered  into,  and  the  plaintiff, 
claiming  under  this  contract,  had  erected  a  brewhouse  on 
part  of  the  ground,  which,  it  was  contended,  would  be  an 
injury  to  the  adjoining  property  of  the  lessor ;  this  was 
argued,  but  unsuccessfully,  to  be  a  reason  for  refusing 
sj)ecific  performance,  Leach,  Y.  C,  saying  that  it  was  not 
necessarily  a  nuisance  :  he  left  open  the  question  whether, 
if  it  liad  in  itself  been  a  nuisance,  that  would  have  been  a 
defense  in  such  a  suit. 

§  953.  It  seems  that  under  the  Irish  tenantry  acts,  and 
perhaps  even  independently  of  them,  the  breach  by  the 
tenant  of  covenants  in  the  lease  will  not  be  a  bar  to  specific 
performance  of  a  covenant  for  renewal. (5)  Certainly  they 
will  not  so  oi^erate  unless  they  be  gross  and  perhaps  also 
willful.^) 

3.  WJiere  specific  performance  icas  granted  and  the 
question  of  breach  of  covenants  left  for  decision  at 
laiD. 

§  954.  Where  the  Court  of  Chancery  found  such  a  con- 
flict of  evidence  as  left  it  in  doubt  whether  there  had  been 
such  a  breach  of  covenant  as  to  render  it  proper  and 
expedient  to  refuse  specific  performance  on  that  ground,  it 
took  the  course  of  directing  the  lease  to  bear  the  date  of  the 
contract,  or  a  date  anterior  to  the  alleged  breaches,  and 
required  from  the  plaintiff  an  undertaking  to  admit  in  any 
action  which  might  be  brought  under  such  lease  for  the 
recovery  of  the  demised  property,  or  upon  any  breaches  of 
covenant  to  be  contained  in  such  lease,  that  such  lease  was 
executed  on  the  the  day  on  which  it  should  bear  date. 

§  955.  This  practice  was  first  introduced  by  the  case  of 
Pain  V.  Coombs  -.{u)  it  was  followed  by  the  Court  of  AjDpeals 
in  Lillie  v.  Legh  \{v)  it  was  discussed,  adopted  and  approved 
in  Rankin  v.  Lay,  (10)  and  had  thus  become  the  well- 
established  practice  of  the  Court  of  Chancery. 

(q)  Munrtv  V.  .Jolliffe,  5  My.  &  Or.,  167, 177.  (v)  3  De  G  &  J.,  204     Cf.  Powell  v.  Love- 

(r)  1  S  &  S.  66.  grove.  8  De  G.  M.  &  G   at  p.  36.5. 

(«)  Trant  v.  Dwyer,  2  Bii.  N.  S  ,  11.     See  {w\  2  De  G.  F  &  J  .  6.5.    See  too  Poyntz  v. 

Thompson  v.  Guyon,  5  Sim.,  6.5;  supra,  §  Fortune,  27  Beav..  393;  Brown  v.  Marquis  of 

(t)  Hare  v.  Burges.  5  VV.  R.,  58,5.  Sligo,  lUlr.Ch.R.,  1;  Cartan  v.  Bury,iil  ,387. 

(w)  1  De  G.  &  .J,  .34  ^S.  C.  before  Stuart  V. 
C,  3  Sm.  &  G..  44«). 


ACTS  IN  CONTRAVENTION"  OF  THE  CONTRACT.    473 

§  956.  It  would  be  presumptuous  to  inquire  whether 
the  court  did  wisely  in  directing  deeds  to  bear  false  dates,  (i??) 
or  in  requiring  persons  to  admit  as  a  fact  that  which  was 
not  a  fact.  But  it  may  be  allowable  to  rejoice  in  the  ex- 
pectation that,  under  the  improved  judicature  now  in  exist- 
ance,  no  such  decrees  as  those  last  referred  to  will  be  made. 
The  high  court  will  probably  decide  the  whole  case  at 
once. 

§  957.  Other  cases  have  arisen  which  illustrate  the  gene- 
ral principle,  in  cases  not  arising  out  of  contracts  for 
leases. 

Where  an  estate  was  sold  upon  the  condition,  amongst 
others,  that  immediate  possession  should  be  given,  and  in 
course  of  disputes  which  subsequently  arose  about  the  title, 
the  vendors  tendered  the  purchaser  his  deposit,  demanded 
back  possession,  drove  the  purchaser's  stock  off  the  estate, 
and  gave  notice  to  the  tenants  not  to  pay  the  rent  to  him, — 
this  was  conduct  inconsistent  with  the  condition  of  the  sale, 
and  was  held  to  operate  as  a  bar  to  specific  performance  at 
the  suit  of  the  vendors.  (?/) 

§  958.  In  another  case  it  was  thought  by  Lord  Cranworth 
doubtful  whether  a  bill  could  be  maintained  for  the  specific 
performance  of  an  award  after  the  i)laintiff  had  taken  pro- 
ceedings to  set  it  aside. (2:) 

§  959.  Where  a  vendor  has  given  notice  of  his  intention 
to  resell  under  the  contract,  it  was  held  that  he  had  pre- 
cluded himself  from  afterwards  seeking  for  specific  per- 
formance, (a) 

§  960.  Again,  a  railway  company  cannot  first  enter  into 
a  contract  for  the  i^urchase  of  land,  then  take  proceedings 
under  their  compulsory  powers  in  a  way  which  assumes 
that  there  is  no  subsisting  contract,  and  then  fall  back  upon 
and  seek  to  enforce  the  original  contract.  (Z>) 

§  961.  Still  it  is  not  every  breach  of  good  faith  which  will 
prove  a  bar.  Where  the  plaintiff  has  been  guilty  of  small 
breaches  of  good  faith,  for  which  the  defendant  had  a 
remedy  in  his  own  hands,  and  where,  if  the  interference  of 
the  court  were  refused,  the  plaintiff  would  be  without  any 

(x)  The  fraudulent  making  of  a  deeil  with  (z)  Blackett  v.  Bates,  L.  R.  1  Ch.,  117;  re- 

a  talse  date  is,  or  may  b»',  forgery.    Keg.  v.  versing  8.  C.  2  H.  &  M.,  270. 

Ritson,  L.  R.,  1  C.  C.  R.,  200  (1)  Bovou  v.  Paul,  28  L.  J.  Ch.,  555. 

(y)  Knatchbull  v.  Grueber,  1  Mad.,  153;  S.  ib)  Bedford  and  Cambridge  Railway  Co.  v. 

C.  Mer.  124.  Stanley,  2  J.  &  H.  746. 


474         FRY  ON  SPECIFIC  PERFORMANCP:  OF  CONTRACTS. 

adequate  remedy,  such  breaches  of  good  faith  liave  been 
hekl  not  to  be  a  bar  to  relief,  though  they  affect  the 
costs.  ((?)' 

(C)  Hoimea  v    Eastern  Counties  Railway    Co.,  3  Jur.  M.S.,  737;  cf  Besant  v.  Wood,  12 

Ch.  D.,  6.i5. 


'  Tender,  in  casen  itliere  specific  performance  is  demanded  ]  In  order  that  an 
action  may  be  sustained  by  the"  vendor  he  must  show  that  he  has  made  a  tender 
of  a  "-ood  title  and  an  offer  to  fulfill  the  conditions  on  his  part.  Hodges,  e.c 
parte',  2i  Ark..  I'.iT:  Mix  v.  Beach,  4(5  111.,  113;  McIIugh  v.  Wells,  89  Mich., 
17o:  ISowle  v.  lloldridge,  03  Ind.,  21-!  Before  a  conveyance  can  legally  be 
required,  the  vendee  must  make  a  good  tender  of  the  purchase  money.  Ilutf 
V.  Jennings,  Morris  (Iowa),  454;  Heuer  v.  Rotkowski,  18  Mo.,  216;  Beebe  v. 
Dowd,  2i  Barb  ,  -Z'y);  Goodale  v.  West,  .5  Col.,  8311;  Bearden  v.  Wood.  1  A.  K. 
Marsh",  4.i0-  Greenup  v.  Strong.  I  Bibb.,  rm;  McComas  v.  Earley,  21  Gratt., 
29;  Iwin  v.  Blakeslev,  07  Pa.  8t.,  24;  Bislinger  v.  Kitts,  0  Barb.,  273;  Tanner 
V.  Peck,  1  Barb's  Ch.,  549;  Lansing  v.  Thompkins,  45  Barb.,  308;  Chase  v. 
Hogan  3  Abb.  Pr.  (N.  S  ),  59.  A  tender  of  the  purchase  money  mu.st  not  only 
be  uiade,  but  it  must  be  kept  good,  in  order  to  stt)p  the  running  of  interest. 
The  vendee  nuist  not  use  the  money  for  other  purpo.ses.  Bissell  v.  Heyward, 
6  Otto.,  58).  When  the  purchase  money  was  tendered,  the  estate  was  worth 
more  than  the  price  agreed  upon,  and  the  vendor  refu.sed  to  convey.  After 
waiting  until  the  value  had  considerably  depreciated  he  sought  the  aid  of 
eciuity^to  compel  specific  performance.  Held,  that  he  could  not  obtain  it. 
Tobey  v.  Foreman  79  111.,  489.  The  i)laintitf,  in  an  action  for  specific  per- 
formance, showed  no  offer  of  compli:ince  with  his  part  of  the  agreement,  and 
no  excuse  therefor,  for  a  period  of  twenty-one  or  twenty-two  months.  Held, 
that  he  was  not  entitled  to  a  decree.     Green  v.  Covilland,  10  Cal.,  317. 

Examples  of  sufficient  Under  J,  As  to  U.  S  Treasury  notes,  see  Davis  v. 
Parker,  14  Allen,  94.  Where  money  is  payable  in  installments,  see  Rogers  v. 
Taylor,'  40  Iowa,  193;  Blackner  v.  Phillips^  07  N.  C  ,  340.  There  was  an  all  - 
gation  that  a  lender  oi  payment  had  repeatedly  been  made,  and  that  the  plain- 
tiff had  at  all  -times  been  and  stdl  was  ready  and  willing  to  pay.  Held,  that 
ihe  tender  shcjuld  have  Ijeen  stated  with  greater  particularity.  Duflf  v.  Fisher, 
15  Cal.,  375:  Hart  v.  McClellan,  41  Ala.,  251.  In  Eiiglander  v  Rogers.  41 
Cal.,  4 JO,  the  allegation  of  tender  by  the  plaintiff  was  as  follows:  that  he  "has 
been  ready  and  willing  during  all  the  time  aforesaid,  and  has  oUered  to  accept 
and  take  said  conveyance,  pursuant  to  said  agreement,  anil  to  pay  the  balance 
of  said  purchase  money."  This  was  held  not  sufficient.  "To  constitute  a 
valid  tender  in  such  a  case,  the  party  must  have  the  money  at  hand,  inuuedi- 
ately  under  his  control,  and  must  then  and  there  not  only  be  ready  and  willing, 
but  produce  and  offer  to  pay  it  to  the  other  party  on  the  performance  by  him 
of  the  requisite  conditions."  Crockett,  J  >ee,  also.  Strong  v.  Blake,  40  Barb., 
227.  Where  there  has  been  a  tender  of  the  purcha.se  money,  and  a  rt-fu.sal  to 
convey,  it  need  not  be  shown  that  the  tender  was  kepi  good.  Allen  v.  Atkin- 
son, 2l  Mich..  351;  King  v.  Ruckman,  21  N.  J.  E(i  ,  599;  McDonald  v.  Kun- 
brell,  3  Iowa,  335. 


NON-PEKFOEMANCE   OF   CONDITIONS.  475 


CHAPTER  XXII. 

OF   NON-PEHFORMANCE    OF    CONDITIONS. 

§  962.  A  contract  may  be  originally  conditional,  and  con- 
tingent upon  the  performance  of  some  act  or  the  happening 
of  some  event.  Where  that  has  occurred,  the  contract  be- 
comes absolute,  and  rests  on  the  same  footing  for  all  pur- 
poses as  if  it  had  been  originally  made  positively  and  without 
reference  to  any  contingency. («)  Bat  until  it  has  thus  be- 
come absolute,  no  person  can  l)e  entitled  to  call  for  its  per- 
formance. (?>)  Where,  therefore,  the  contract  is  in  its  origin 
conditional,  it  may  alford  a  ground  of  defense  that  the  con- 
dition has  not  been  performed.' 

(a)  Pt  Lorii  Bjmillv,  M.  R..  in  Regent's    Giff  ,  21fi;  3  De  G.   &  J.,  334;   Cf.  Abbott  v. 
Canal  Co.  V.  Ware, '23  Heav.,  5Si)  I'.Uir,   S    vV      K,61i;    DoiuMms  v.   i*Mmouth 

(6)  .Scutt  V.   (Jorporiiion  of   Liverpool,   I    R  liiwav  an'l  Harbor  Co.,  14  W.  R.  361. 

■  Where  A.  signs  an  agreement  to  do  certain  acts,  on  tlie  performance  of  cer- 
tain conditions  precedent  by  B.,  and  B.  perfoims  tiio.se  conditions,  equity  will 
compel  a  specific  performance  of  the  agreement  l)y  A.  Launing  v.  Oole,  :•» 
Green's  Ch.,  229.  Hut  a  party  .so  .seeking  to  (jhtaiu  the  benefit  of  a  conditional 
agreement  must  show  not  only  that  he  accepted  the  otfer  made,  but  also  that 
h(^  faithfully  performed  the  condition,  liilly  v.  Barnard,  S  Gill-  6c  .1.,  170. 
And,  therefore,  at  law,  where  one  party  covenants  to  give  a  deed  on  a  certain 
day,  and  the  other  c  'venants  to  pay  money  on  the  same  day,  neither  can  main- 
tain an  action  against  the  other,  •until  he  has  performed  or  tendered  perform 
ance  on  his  part  Green  v.  Reynolds,  2  John.,  207;  .Jones  v.  Gardiner,  10  id., 
20(5;  Hardin  V  KreiLsinger,  IT  id  ,  29-J;  Robb  v.  3Iontgomery,  20  id.,  lo;  Gazely 
V  Price,  lb'  id..  2ij7;  Rubert.son  v.  Robertson,  :!  Rantl  ,  GS;  .Northrup  v.  Nor- 
thrup,  (5  Cow.,  296;  Meriwether  v.  Carr,  I  Blackf.,  41  o;  Bailey  v.  Clay,  4 
Rand.,  ii4();  see  Gibbs  v.  Champion,  ;j  Ham.,  i5:i5.  And  in  equity,  where  one 
contracts  for  a  lease,  upon  certain  stipulations  to  be  performed  by  him,  and 
enters  upon  the  lands,  but  fails  to  perform  such  stipulations,  he  cannot  compel 
the  other  party  to  the  contract,  or  his  assignee,  to  make  a  lease  to  him.  Jones 
V.  Roberts,  G  Call,  187;  Harvie  v.  Banks,  1  Rand.,  4<)8.  Chancer}'  never  re- 
lieves against  the  breach  of  conditions  precedent,  althoiigh  it  may  against  con- 
ditions subsequent.  The  reason  of  this  is  obvious.  In  cases  of  conditions 
precedent  no  estate  can  vest  until  the  condition  be  performed ;  and,  therefore, 
any  claim  for  relief  must  be  without  foundation  Bat  in  cases  of  conditions 
subsequent,  the  estate,  or  interest,  vests  in  tlie  first  instance,  subject  to  be 
divested  on  non-performance  or  breach  of  the  condition.  Wells  v.  Smith,  2 
Edw.'s  Ch.,  7^;  Chipman  v.  Thompson.  Walk  's  Ch.,  405;  Preston's  Leg.,  103, 
ch.  5.  Therefore,  a  corporation  will  not  be  permitted  to  enforce  payment  of 
stock,  for  which  its  agents  obtained  suliscriptions,  on  conditions  with  which  it 
refuses  to  comply.  Turnpike  Co.  v.  Churchill,  ti  Monr.,  427.  But  where  there 
has  been  a  breach  of  a  condition  sul)se(iuent,  and  compensation  can  be  made,  a 
court  of  equity  will  grant  relief.  Walker  v.  Wheeler,  2  Conn.,  299;  De  Forrest 
V.  Bates,  1  E<iw.'s  Ch.,  394;  Chipman  v.  Thompson,  Walk  's  Ch.,  4U5.  And, 
in  accordance  with  this  principle,  it  has  been  held  that,  where  b}'  the  terms  of 
a  lease,  it  is  to  cea.se  and  determine  upon  a  breach  of  any  of  the  covenants 
therein,  and,  by  a  clau.se  in  the  lease,  it  is  provided  that  the  lessor  may  re-enter 


476        FIIY  ox  SPECIFIC  PERFORMANCK  OF  CONTRACTS. 

§  9«:i.  A  case  before  Lord  Romilly,  M.  R.,  may  be  cited 
as  an  illustration  of  this  obvious  principle.  The  defendants 
ao-reed  to  take  a  lease  of  a  public  house  from  the  plaintiff, 
provided  the  retail  license  was  obtained,  and  the  plaintiff 
agreed  to  use  his  utmost  efforts  to  obtain  this  license.  The 
defendant  entered  into  possession  to  qualify  himself  as  a 
publican  for  the  license  and  obtained  a  license  from  the 
justices,  but  under  compulsion  of  the  Justices  and  threat  of 
refusal,  he  gave  to  the  justices  a  verbal  promise  that  no 
excisable  liquor  should  be  sold  for  consumption  on  the 
l^remises.  It  was  held  that  the  condition  was  not  performed 
and  specific  performance  was  refused. (c) 

§  964.  A  contract  may  be  conditional  either  by  express 
words  of  condition,  or  because  the  court,  upon  a  considera- 
tion of  its  terms,  gathers  that  to  have  been  the  intention  of 
the  contracting  parties.  This  is,  of  course,  a  question  to  be 
decided  on  the  terms  of  each  contract.  It  will,  therefore, 
be  sufficient  briefly  to  allude  to  two  or  three  cases  of  practi- 
cal moment. 

§  965.  In  the  care  of  contracts  by  railway  companies,  the 
question  has  sometimes  arisen  how  far  they  are  conditional 
on  the  formation  of  the  railway.  In  one  case,  where  a  com- 
pany before  incorporation  contracted  with  a  landowner,  the 
contract  provided  for  a  bridge  over  the  railway,  a  certain 
deviation  of  the  line,  and  other  works  entirely  dependent 
on  its  formation,  and  also  for  the  payment  of  £4,500  as  pur- 
chase money  for  certain  lands  to  be  taken  by  the  company, 
and  for  consequential  damages  to  the  landowner's  estate. 
The  contract  was  expressly  conditional  on  the  act  passing. 
It  passed  but  the  railway  was  abandoned,  and  the  time  for 

(c)  Modlen  v.  Snowball,  29  Beav.,  641,  affirmed  31  L.  J.  Ch.,  44;  10  W.  R.,  24. 

for  a  breacli  of  the  same  covenants,  the  lease  is  voidable  only  upon  such  a 
breach,  and  not  void.  (Walworth,  Ch.)  Stuyvesant  v.  Davis,  9  Paige,  Vi7.  To 
create  a  condition  precedent  or  subsequent  no  precise  technical  words  are  re- 
quired. The  con.struction  must  always  be  found  upon  the  intention  of  the 
parties.  If  the  act  or  condition  required  does  not  necessarily  precede  the  vest- 
ino-  of  the  estate,  but  may  accompany  or  follow  it.  and  if  the  act  may  be  as 
well  done  after  as  before  the  vesting  of  the  estate,  or,  if  from  the  nature  of  the 
act  to  be  performed,  and  the  time  required  for  its  performance,  it  is  evidently 
the  intention  of  tiie  parties  that  the  estate  shall  vest,  and  the  grantee  perform 
the  act,  after  taking  possession,  then  the  condition  is  subsequent.  Underhill  v. 
Sarato-'-a  and  Washington  R.  R.  Co..  20  Barb.,  455.  Therefore,  a  conveyance 
to  a  railroad  corporation  upon  the  expre.ss  condition  that  the  company  should 
construct  its  railroad  within  the  time  prescribed  by  the  act  of  incorporation,  is 
a  I'-rant  upon  a  condition  subsequent,  and  not  precedent.  NicoU  v.  ^'ew  lork 
and  Erie  11.  R.  Co  ,  2  Keruan  (N.  Y  ),  121. 


NON-PERFOKMANCE   OF   CONDITIONS.  477 

taking  the  lands  had  expired,  Xine-tenths  of  the  contract, 
as  Knight  Bruce,  L.  J.,  remarked,  had  become  impracti- 
cable by  reason  of  the  abandonment  of  the  railway :  and 
the  Lords  Justices,  though  not  deciding  the  point,  evidently 
inclined  to  the  oj)inion  that  the  contract  was  conditional, 
not  only  on  the  passing  of  the  act,  but  on  the  making  of  the 
railway,  {d)  And  in  the  subsequent  case  of  Lord  James  Stuart 
V.  London  and  Xorth- Western  Railway  Co.,(e)  Lord  Cran- 
worth,  L.  J.,  expressed  a  similar  opinion.  These  cases  have 
been  doubted, (/')  but  rather  on  the  point  of  Jurisdiction 
than  of  the  construction  of  the  contracts :  and  they  have 
certainly  received  great  support  from  the  case  of  Gage  v, 
Newmarket  Railway  Co.{g)  There  the  company  had  cove- 
nanted with  the  plaintiff  that,  in  the  event  of  a  bill  for 
extending  their  powers  being  passed  in  the  then  present 
session,  the  company  should,  before  they  should  enter  on 
any  part  of  the  plaintiff's  land,  pay  him  £4,900  purchase 
money  for  any  portion  of  his  land,  not  exceeding  forty-three 
acres,  which  the  com j)any  might  require  to  take,  and  £7,100 
as  landlord' s  compensation  for  damages  arising  by  the  seve- 
rance thereof.  It  was  held  that  the  covenant  was  not  for 
the  payment  of  an  absolute  sum  as  a  consideration  for  the 
plaintiff's  withdrawing  his  opposition,  but  a  payment  as 
purchase  money  and  compensation  for  services,  which  could 
not  be  due  when  no  land  was  required  or  taken,  and  no 
severance  affected  for  which  compensation  could  arise.  In 
the  case  of  the  Scottish  Xorth-Eastern  Railway  Co.  v.  Stew- 
B.Tt{h)  the  House  of  Lords  arrived  at  a  similar  conclusion 
upon  the  contract  there  in  question. 

§  966.  The  performance  of  conditions  precedent  may  of 
course  be  waived  by  the  persons  entitled  to  their  perform- 
ance ;{i)  but  any  w^aiver  to  be  binding  must  be  made  inten- 
tionally and  with  a  knowledge  of  the  circumstances,  (y)' 

(d)  Webb  V.  Direct  London  and  Ports-  {g)  IS  Q.  B.,  457.  See,  also,  Edinburgh, 
mouth  Railway  Co.,  1  De  G.  M.  &  G.,  521,  re-  Perth  and  Dundee  Hallway  Co.  v.  Philip,  3 
versing  S.  C.  9  Ha  ,  129.  Macq..  514 

(e)  1  De  G.  M.  &  G  ,  721.    This  case  in  the  {fi)  3  Macq  ,  382. 

court  below  is  reported,  15  Beav.,  513.    See,       (i)  Beatsou  v.  Nicholson,  6  Jur.,  620. 
also,  5  H.  L.  C,  .351.                                                   (J)  Earl  of  Darnley  v.   London,  Chatham, 
(/)  Hawkes  v.  Eastern  Counties  Railway    and  Dover  Railway  Co.,  L.  R  2  U.  L.  43  (S. 
Co.,  1  De  G.  M.  &  G.,  737;  S.  C.  5  H.  L.  C,    C,  1  DeG,  J.  &  6.,  204,3  id.  24. 
331. 

'  Contract  assigned  before  payinent.']  The  purchaser  assigned  his  contract 
before  payment  became  due,  and  the  assignee  failed  to  pay  before  the  vendor 
commenced  his  action  for  specific  performance.  Held,  that  it  was  proper  for 
the  latter  to  tender  a  conveyance  to  the  original  purchaser.  Corbus  v.  Leed,  69 
111,,  205. 


478        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 


CHAPTER  XXIII. 

OF  THE  INCAPACITY  OF  THE  DEFENDANT  TO  PERFORM  HIS 
PART  OF  THE  CONTRACT, 

§  967.  There  are  certain  cases  in  which  the  contract  is 
construed  to  be  conditional,  on  individual  capacity,  or  on 
the  continued  existence  of  some  state  of  facts  or  thing. 
"Contracts  for  personal  service,  for  matters  dependent  on 
personal  capacity,  as  to  write  a  book  or  paint  a  picture,  are 
conditional  on  the  continuance  of  the  ability,  mental  or  cor- 
poreal, to  perform  them."(«)  So,  again,  where  from  the 
nature  of  the  contract  it  appears  that  the  parties  contracted 
upon  the  footing  of  the  existence  at  the  time  of  perform- 
ance of  some  particular  specified  thing,  and  there  is  no 
express  or  implied  warranty  that  the  thing  shall  exist,  a 
condition  is  implied  that  the  party  to  do  the  act  shall  be 
excused,  in  case  before  breach  performance  becomes  impos- 
sible by  the  perishing  of  the  specified  thing  without  the 
default  of  the  party.  This  principle  has  been  applied  to  a 
contract  to  let  a  music  hall,  which  was  destroyed  by  fire 
before  the  day  arrived  ■,{h)  and  to  a  contract  to  sell  200  tons 
of  potatoes  grown  on  particular  land.(c) 

§  968.  All  these  contracts,  being  conditional  and  not 
positive,  are  not  within  the  rule  that,  where  there  is  a  posi- 
tive contract  to  do  a  thing  not  illegal,  the  contractor  must 
perform  it  or  pay  damages  for  not  doing  it,  though  it  has 
become  impossible.  On  such  contracts  no  action  can  be 
maintained,  whether  for  damages  or  specific  performance. 

§  969.  But  in  contracts  i^ositive  and  not  conditional,  the 
incapacity  of  the  defendant  to  x^erform  his  part- of  the  con- 
tract, whilst  it  lurnishes  no  answer  to  an  action  for 
damages, (cZ)  affords  aground  of  defense  against  specific  per- 
formance, (e)    This  contention  does  not,  like  that  in  the  case 

(a)  PerBramwell  B.,  in  Hall  v.  Wright,    See,  also,  Appleby  v.  Myers,  L.  R.  2  C.  P. 
El.  B.  &  E.,  778;  Poussard  v.  Spies,  1  Q.  B.    651.  _ 

D.,  410,  414.  (d)  Hall  V.  Wri?ht,  El.  B.  &  E.,  746;  Brown 

(6)  Taylor  v.  Caldwell,  3  B.  &  S.,  826.  v.  Royal  Insurance  Co.,  1  El.  &  EL,  853. 

(c)  Howell  V.  Coupland,  1  6.  B.  D.,25S.       («)  Per  Lord  Hardwicke  in  Green  v.  Smith, 

lAtk.,  573. 


INCAPACITY   OF  TllP:   DEFENDANT.  479 

of  conditional  contracts,  rest  upon  the  nature  or  terms  of 
the  contracts,  nor,  like  that  grounded  on  the  incapacity  of 
the  plaintiff  to  perform  his  part,  rest  upon  any  principle  of 
justice  that  operates  in  favor  of  tlie  defendant,  but  is  based 
upon  the  necessity  of  the  case  arising  out  of  the  nature  of 
the  relief  sought.' 

§  970.  Where  a  bill  was  filed  against  the  provisional 
committee  of  a  projected  railway  company  for  the  specific 
performance  of  a  contract  to  deliver  to  the  plaintiff  a  certain 
number  of  scrip  certificates  ;  there  being  no  allegation  that 
the  defendants  had  any  scrip  which  they  could  deliver,  but 
a  statement  from  which  the  contrary  might  rather  be 
inferred,  a  demurrer  was  allowed  on  the  ground  that  the 
bill  did  not  show  any  capacity  in  the  defendants  to  perform 
the  contract. (/)  So  where  a  defendant  showed  that  he  had 
sold  the  property  in  question  for  a  valuable  consideration 
to  a  third  party,  no  performance  could  be  enforced  -.{g)  and 
so  again,  assuming  that  a  covenant  to  produce  deeds  can  be 
obtained  by  way  of  specific  performance  of  a  covenant  for 
further  assurance,  it  seems  that  the  court  will  not  attempt 
so  to  carry  it  into  effect  where  the  deeds  are  not  in  the  pro- 
posed covenantor's  power. (7i)'    So  again    a   contract    by 

(/)  Columbine  v.  Chichester,   2  Ph.,  27;       (g)  Denton  v.  Stewart,!  Cox,  258,  17  Ves., 
Ferguson  V.  Wilson,  L.  R.  2 Ch.,  77.  276  n.  „.jj,  .       ,  r.         oio 

*  (A)  Hallett  V.  Middleton,  1  Russ,  243. 


1  Courts  of  equity  never  enforce  the  specific  performance  of  an  agreement 
where  the  decree  would  bo  a  vain  or  imperfect  one.  Tobey  v.  The  County  of 
Bristol,  3  Story,  800.  But  although  the  incapacity  of  the  defendant  will  defeat 
a  decree  for  specific  performance,  yet,  where  a  party  has  juit  it  out  of  his 
power  to  perform  specifically,  a  bill  tiled  for  that  purpose  will  l)e  retained,  and 
an  equivalent  in  damages  awarded,  to  be  assessed  on  reference  to  a  master,  or 
to  a  jury  upon  an  issue  of  quantum  damnificatus,  according  to  circumstances. 
Woodcock  V.  Bennett,  1  Cow.,  711. 

«  Who  nmd  prepare  the  deed;  abstract  of  title.'\  In  many  of  the  States  the 
vendor  must  cause  the  deed  to  ])e  ready  for  defivery.  This  has  been  expressly- 
held  to  be  the  rule  in  California,  Morgan  v.  Stearns,  40  Cal.,  484;  Illinois, 


V.  King,  2  id.,  155;  Hunt  v.  Livermore,  5  id.,  895;  Brown  v.  Bellows,  4  id., 
179-  Minnesota,  St.  Paul  Division  v.  Brown,  9  Minn.,  157;  Mississippi,  Stan- 
dife'r  v.  Davis,  18  Sm.  c^  INIarsh.,  48;  New  Hampshire,  Fairbanks  v.  Dow,  6 
N.  H..  26(3;  New  York,  in  an  executory  contract,  the  vendor  of  real  property 
must  cause  a  suflicient  deed  to  be  prepared,  which  must  be  tendered  to  the 


V  Northrup  6  Cow\,  296;  Hudson  v.  Swift,  20  John.,  27;  Parker  v.  Parmlee, 
20  id.,  130;  Slocum  v.  Despard,  8  Wend.,  615;  Johnson  v.  Wygant,  11  id.,  48; 


480        FKY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

directors  to  accept  sliares  in  payment  of  calls  being  legally- 
impossible  of  performance  cannot  be  enforced. (i)  And 
where  a  charitable  corporation,  which  had  no  power  of  sell- 
ing except  under  the  land  clauses  act,  contracted  to  sell 
land  without  having  the  price  settled  in  the  manner  pre- 
scribed by  the  act,  the  court  refused  to  decree  specific  per- 
formance. (,/) 

§  971.  It  is  immaterial  for  this  purpose  that  the  defend- 
ant is  the  author  of  his  own  incapacity.  "  Put  the  extreme 
case,"  said  Kindersley,  V.  C,  "of  a  vendor  burning  a  title 
deed :  the  court  could  not  make  a  decree  that  he  should 
deliver  it  up,  and  be  imprisoned  if  he  does  not."(A-) 

§  979.  It  is  not  necessary  to  the  speciific  performance  of 
a  contract,  that  it  should  be  one  which  the  parties  at  the 
time  of  entering  into  it  had  the  power  of  carrying  into 
effect,  nor  one  with  regard  to  which  it  depends  on  them- 
selves alone  whether  they  would  ever  be  able  to  perform  it. 
For  where  a  party  enters  into  a  contract  without  at  the 
time  having  the  power  of  performing  it  and  afterwards 
acquires  that  power,  he  is  bound  to  perform  the  contract 
he  entered  into.(Z)  Therefore  a  defendant  cannot  object  at 
an  early  stage  of  an  action  for  specific  performance  that  he 
he  has  not  the  interest  he  has  contracted  to  sell,  as  he  can- 
not be  i)ermitted  to  say  that  he  did  not  mean  to  acquire  that 
interest. (t?^)'  And  so  where  a  defendant  had  contracted  to 
give  a  certain  indemnity  to  be  secured  on  real  estate,  and 
alleged  that  he  had  not  real  estate  of  sufficient  value,  and 
contended  that  the  plaintiff  ought  to  accept  a  personal 
indemnity,  it  was  held  that  he  was  bound  to  purchase  real 
estate  of  sufficient  value,  (ti) 

(i)  Ellis  V.  Colman,  25  Beav  ,  662.     See,  (I)  Holroyd  v.  Marshall.  10  H.  L.  C,  191, 

also,  Seawell  v.  Webster,  29  L.  J.  Ch.,  71.  211;  Crane  v.  Mitchell,  15  L.  J  Ch.,  287. 

(j)  Wvcombe  Railway  Co.  v.  Donnington  (m)  Per  Lord  Eldon  in  Browne  v.  Warner, 

Hospital,  L.  K.  1  Ch.,  268.  14  Ves  ,  412. 

{k)  In  Seawall  v.  Webster,  29  L.  J.  Ch. ,  73.  (n)  Walker  v.  Barnes,  3  Mad.,  247. 

Fuller  V.  Hubbard,  6  Cow.,  13;  Connelly  v.  Pierce,  7  Wend..  129;  Pennsyl- 
vania, Switzer  v.  Hammel,  3  Serg.  &  Rawle,  228 ;  South  Carolina,  Prothro  v. 
Smith,  6  Rich.'s  Eq.,  334.  In  Arkansas  the  vendee  must  cause  the  deed  to  be 
prepared  and  must  tender  it  to  the  vendor.  This  is  the  rule  in  England. 
Byers  v.  Aiken,  5  Pike,  419.  In  Alabama  the  rule  is  the  same  as  in  England 
and  Arkansas,  and  in  this  State  the  vendor,  when  required,  must  furnish  an 
abstract  of  his  title.     Chapman  v.  Lee,  55  Ala.,  016. 

•  See  the  cases  of  Collins  v.  Carr,  Freem.,  5;  Greenaway  v.  Adams,  12  Ves., 
401;  Coffin  v.  Cooper,  14  id.,  205;  and  Hull  v.  Vaughan,  6  Price,  163,  in  sup- 
port of  the  rule. 


INCAPACITY   OF   THE   DEFENDANT.  481 

§  97Jf .  The  same  principle  is  exemplified  in  a  case  which 
was  decided  in  the  34th  year  of  Charles  II.  During  the 
civil  wars,  the  then  Duke  of  Newcastle  had  gone  abroad, 
and  whilst  he  was  thus  absent,  the  defendant,  wlio  was  his 
heir  apparent,  without  authority  from  the  then  Duke,  sold 
and  conveyed  to  the  plaintiff  certain  estates  of  the  Duke, 
and  received  the  jjurchase  money,  and  a|iplied  it  for  the 
benefit  of  the  family.  The  defendant  having  subsequently 
succeeded  to  the  dukedom  and  the  estates  in  question  as 
heir,  was,  by  Lord  Nottingham,  held  bound  to  make  good 
his  sale,  and  was  decreed  to  do  so  accordingly,  (o)  At  the 
time  of  the  contract,  specific  performance  would  have  been 
impossible  on  the  part  of  the  defendant,  but  it  had  subse- 
quently become  possible  by  the  devolution  of  the  estate  con- 
tracted to  be  sold. 

§  974.  On  the  same  principle,  the  court  will  not  in  all 
cases  consider  as  void,  contracts,  whether  by  private  persons 
or  companies,  which  require  the  interposition  of  the  legisla- 
ture before  they  can  be  carried  into  effect,  and  accordingly 
will  in  the  meanwhile  protect  the  property  in  issue. (^.') 

§  975.  With  regard  to  real  estate,  the  statute  32  Hen. 
VIII.,  c.  9,  prevents  the  sale  of  a  pretended  right  to  land 
by  a  person  out  of  possession  ;  but  if  a  person,  instead  of 
selling  a  pretended  right,  contracts  on  a  certain  future  day 
to  convey  an  estate,  and  he  is  on  the  day  possessed  of  it, 
the  contract  api3ears  not  to  be  within  the  oi^eration  of  the 
statute,  and  to  be  binding  on  both  parties.  ((7) 

§  976,  And  so  also  with  regard  to  goods,  the  legality  of 
contracts  for  the  sale  of  such  property  not  at  the  time  in  the 
possession  of  the  vendor  is  now  well  established  ;(r)  so  that, 
notwithstanding  an  opposite  decision  of  Lord  Maccles- 
field, (.9)  such  a  contract  would  noAv  probably  be  enforced,  if 
in  other  respects  it  fell  under  the  jurisdiction  of  the  court.  (^) 

§  977.  As  the  consent  of  a  third  party  is,  or  may  be,  a 
thing  impossible  to  procure,  a  defendant  who  has  entered 

(o)  Clayton  v.  Dukeof  Newcastle,  2  Gas.  in  legal,  see  Mayor  of  Norwich  v.  Norfolk  Rall- 

Ch..  11-2.  way  Co.,  4  El.  &  Bl.,  397. 

(p)  (ireat  Western  Railway    Co.  v.  Birm-        (q)  De  Medina  v.  Norman,  9M.  &  W.,  829; 

Ingham  and  Oxford  Junction  Railway  Co.,  2  and  see  turther,  as  to  this  statute,  supra,  § 

Ph.,  597;  per  Lord  st.  Leonards  in  Hawkes  211. 

V.  Eastern  Counties  Railway  Co.,  1  De  G  M.       (r)  Hibblethwalte  v.  McMorine,  5  M.  &  W. 

&  G.,  756;  Devenish  v.  Brown,  2S  L.  J.  Ch.,  462. 

23;  4  W.  R.,783(\Vood,  V.  C);  Frederick  v.        (s)  Cuddeev.  Rutter,5  Vin.  Abr  ,538,pl.2L 
Coxwell,  3  Y.  ito  J.,  514.    As  to  contracts  re-       (t)  Holroyd  v.  Marsnall,  10  H.  L.  C,  19L 
quiring  proposed  legislation  to  render  them 

31 


482        FRY  ON  SPECIFIC  PKRFOUMANCE  OF  CONTRACTS. 

into  a  contract  to  the  performance  of  which  such  consent  is 
necessary,  will  not,  in  case  such  consent  cannot  be  procured, 
be  decreed  to  obtain  it,  and  thus  perform  an  impossi- 
bility, (w) 

g  978.  Where  the  husband,  or  husband  and  wife,  have 
entered  into  a  contract  to  sell  the  estate  of  the  wife,  the 
Court  of  Chancery  used  formerly  to  decive  the  husband  to 
procure  his  wife's  consent,  and  in  default  commit  him  to 
croal  until  she  yielded. (?;)'     But  the  absurdity  of  such  a 


6  vv"  k.  -206;  27  L.  J.  Ch.,  156;    Meara  v.    Ambl.,  495;  Morria  v.  Stephenson,?  Ves., 474. 
Alei^ra,  8  Ir.  Ch.  R.,  37;  and   Willmott  v. 


1  Wheeler  v.  Newton,  2  Eq.  Cas.  (Ala  ),  44;  Colvert  on  Par.,  269.  A  husband 
and  wife  contracted,  in  writing,  to  sell  the  land  of  the  wife;  the  separate  ac- 
knowledgment of  the  wife  was  had.  Held,  that  an  action  would  lie  for  specific 
performance.  Darkel  v.  Hunter,  «I  Pa.  St..  382.  See  contra,  Frarey  v.  Wheeler, 
4  Oregon,  190.  Where  the  conveyance  made  by  a  married  woman  is  void  she 
should  be  made  a  party.  Stainsbury  v.  Pope,  4  Bibb.  (Ky.),  492.  Where  the 
husband  is  not  named  the  action  may  be  brought  by  the  wife  alone.  Stampoff- 
ski  V.  Hooper,  75  111.,  241;  see,  in  this  connection,  Harper  v.  Whitehead,  33 
Ga.,  138.  A  bill  was  tiled  by  a  husband  and  wife  to  compel  specific  perform- 
ance of  a  contract  to  convey  land  to  the  wife;  pending  the  action  the  wife  died. 
Held,  that  their  children  must  be  joined,  or  an  order  to  proceed  in  the  name  of 
the  survivors  in  order  that  a  decree  could  be  entered  on  the  merits.  Hand  v. 
Jacobus,  19  N.  J.  Eq.,  70.  Wliere  the  wife  is  a  tenant  for  years  she  may,  with 
her  husband,  sustain  an  action  for  specific  performance  against  the  lessor. 
Bain  v  Bickett,  1  Cine  ,101.  When  a  wife  was  not  a  party  to  a  contract  for 
the  sale  of  land  she  cannot  ])e  compelled  to  join  in  the  conveyance  of  the  same, 
and  she  is  not  a  proper  party  to  an  action  for  specific  performance.  Richmond 
v.  Robinson,  12  .Mich.,  193.  A  husband  contracted  for  the  sale  of  his  wife's 
land  and  described  it  as  his.  Held,  that  the  wife,  after  his  death,  was  not 
entitled  to  a  decree  of  specific  performance  against  the  purchaser  for  her  own 
benefit.  Hoover  v.  Calhoun,  16  Graft.,  109.  The  wife  of  a  surviving  partner 
need  not  be  joined  as  a  party.  Galbraith  v.  Gedge,  16  B.  Mon.,  631.  Au 
action  will  lie  to  chanee  the  separate  estate  of  a  married  woman  under  her 
ao-reement  to  purchaseT  Knowles  v.  McEamly,  10  Paige's  Ch.,  342;  Hinckley 
vT  Smith,  51  N.  Y.,  21 ;  Berry  v.  Cox,  8  Gill.,  466;  Ballin  v.  Dillage,  37  N.  Y., 
35-  N.  Y.  Rev.  St.  (6th  ed.),  vol.  3,  page  160,  i:$  82.  It  cannot  be  maintained 
a^-ainst  her  personally,  however.  Francis  v.  Wizzel,  1  Mad.,  258.  The  engage- 
ment must  be  made  on  the  credit  of  her  separate  estate.  Johnson  v.  Gummius, 
16  N.  J.  Eq.,  97;  Harrison  v.  Stewart,  18  id.,  451;  Hinckley  v.  Smith,  51  N. 
Y.,  21.  In  New  York  a  married  woman  acts  as  nfeme  sole,  her  liability,  when 
she  binds  herself  to  an  executory  contract,  does  not  depend  upon  the  existence 
of  special  circumstances,  but  is  governed  by  the  ordinary  rules  by  w^hich  the 
liability  of  persons  sni juris  upon  their  contracts  are  determined.  Cushman  v.- 
Henry,  75  N.  Y.,  103 ;  Rev.  S  C,  44  N.  Y.  Sup.  Ct.,  93.  In  Iowa  the  wife  can 
control  her  own  property,  vindicate  her  individual  rights  and  bind  herself  by 
contract  as  fully  and  to  the  same  extent  as  her  husband.  Spafford  v.  Warren, 
47  Iowa,  47.  In  South  Carolina  the  husband  is  a  formal  and  not  a  substantial 
party  in  actions  against  the  wife  on  her  individual  contracts,  other  than  for 
necessaries.  Ross  v.  Linden,  12  S.  C,  592.  Equity  for  many  purposes  treats 
the  husband  and  wife  as  capable  of  concocting  with  each  other ;  such  contracts 
will  sometimes  be  enforced,  even  as  against  the  creditors  of  the  husband. 
Campbell  v.  Galbreath,  12  Bush.  (Ky.),  459.     A  husband  and  wife,  in  a  con- 


INCAPACITY  OF  THE  defp:xdaxt.  483 

course  is  obvious ;  because  the  Court  of  Cliancery  was 
thus  putting  all  the  compulsion  it  could  upon  the  wife  to 
induce  her  to  do  an  act,  of  which  the  essence  is  that  it  is 
done  without  compulsion  ;  the  Court  of  Chancery  was  dis- 
tressing her  to  give  her  consent,  whilst  the  court  of  common 
pleas  was  examining  her  to  see  that  she  was  acting  from 
freewill  alone;  audit  is  now  accordingly  established  that 
the  court  will  not  interfere  specificallj^  to  perform  contracts 
where  a  wife's  consent  is  requisite,  and  she  refuses  to  give 
it  {w)  But  in  cases  of  contracts  by  the  husband  and  wife, 
it  will  enforce  the  contract  against  the  husband,  with  com- 
pensation for  the  interest  which  the  wife's  refusal  has  pre- 
vented the  plaintiff  from  acquiring,  (.t) 

§  979.  It  must  not,  however,  be  misunderstood  that  the 
incapacity  of  the  defendant  to  perform  a  contract  literally 
and  exactly  in  all  its  parts  will  enable  him  to  refuse  to  per- 
form it  in  substance.  The  plaintiff  has  in  many  cases  the 
right  to  call  on  the  defendant  to  perform  the  contract  as 
best  he  can,  though  the  defendant's  incapacity  to  perform  it 
fully  might  be  a  bar  to  him,  if  he  filled  the  position  of  plain- 
tiff. All  the  cases  in  which  a  plaintiff'  enforces  a  contract 
so  far  as  the  defendant  can  perform  it  and  obtains  compen- 
sation from  him  for  the  part  unperformed  are  instances  of 
this.(?/)  Some  other  cases  of  the  same  sort  may  be  men- 
tioned. 

§  980.  If  two  tenants  in  tail  in  common  were  to  contract 

(«,■)  Bryan  v.  Wooley,  1  Bro.  P.  C,  1S4;    per  Lord  Mausfleld,  C.  J.,  In  Davis  v.  Jones, 
Emery  v.  Wase,  8  Ves..  5(j5;  Frederick  v.    1  X.  R.,iG9. 

Coxwell,  3  y.  &  J.,  5U;  Howell  v.  George,  1  (x>  Barnes  v.  Wood,  L.  R.8  Eq,  424;  Castle 
Mad.,  1;  Buck  v.  Whellev,  in  D.  P.  1  Mad.,  v  Wilkinson,  L.  K.  5  Cn.,  534;  inira,  §  12-2S, 
7  n.;  Martin  v.  Mitcliell,  2  J.  &  W.,  413,  425;    1232. 

(y)  See  Part  V.,  chap,  ii.,  §  1222,  et  seq. 

tract  founded  upou  a  proper  consideration,  bound  themselves  to  execute  a  mort- 
gage upon  the  separate  estate  of  the  wife.  Held,  that  a  court  of  equity  -will 
enforce  such  contract,  and  that  the  estate  is  liable  for  the  debt  intended' to  be 
served.  Hall  v.  Hume,  37  Md.,  500.  A  married  woman  purchased  real  estate 
and  gave  her  notes,  secured  by  mortgage.  Held,  that  the  vendor  could  hold  it 
in  equity  for  the  purchase  money.  This  was  in  a  case  where  no  personal  judg- 
ment could  be  given  upon  the  notes.  Pemberton  v.  Johnson,  40  Mo.,  342; 
Warmick,  40  Pa.  St.,  140;  see,  also,  Beame  v.  McGee,  46  Ala.,  170;  Phillips  v. 
Gr3,ves,  20  Ohio  St.,  371.  In  Massachusetts  the  written  assent  of  the  husband 
, is  required  to  make  a  wife's  contract  binding;  it  may  then  be  specifically 
'enforced.  Boker  v.  Hathaway,  5  Allen,  103;  TownsloyV.  Chapiu,  12  id.,  479. 
"Where  a  married  woman  conveyed  her  real  property  for  a  valuable  considera- 
tion and  the  vendee  made  permanent  improvements  thereon.  Held,  that 
although  her  contract,  entered  into  during  coverture,  was  incapable  of  specific 
enforcement,  still  the  value  of  the  improvements,  less  the  rent  of  the  premises, 
must  be  a  charge  upon  the  land  until  paid.     Frarey  v.  "Wheeler,  4  Oregon,  190. 


484        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

to  sell  an  estate  and  one  of  them  died  before  completion, 
the  issue  in  tail  of  the  one  dying  would  not  be  bound  by 
the  contract ;  but  it  seems  that  the  purchaser  might,  if  he 
chose,  sue  the  survivor  for  a  conveyance  of  his  moiety  on 
jDayment  of  a  half  of  the  purcliase  money.  (^) 

§981.  So  in  Carey  v.  Stafford, (r^  in  the  Exchequer  in 
1725,  where  a  man  executed  a  deed  affecting  to  convey  land^ 
therein  described  of  the  yearly  value  of  £22  to  his  servant, 
and  no  such  lands  existed,  the  court  compelled  him  to  con- 
vey lands  of  equal  value. 

§  98*3.  And  so  if  a  copyholder  were  to  contract  to  grant 
a  lease  for  a  longer  term  than  the  custom  allowed,  he  would, 
it  seems,  be  compelled  to  effectuate  his  contract  in  substance, 
by  from  time  to  time  executing  leases  for  such  terms  as  he 
could,  till  he  had  made  up  the  term  contracted  for.  (6) 

§983.  Errington's  case,(c)  though  not  on  a  specific  per- 
formance, is  another  illustration  of  this  principle.  He  had 
contracted  for  £9,000  to  build  a  bridge  over  the  Tyne,  and 
to  maintain  it  for  seven  years,  and  had  entered  into  a  bond 
in  that  sum  conditioned  for  performance  of  the  contract. 
The  bridge  was  built,  but  thrown  down  by  a  flood  ;  and  it 
was  found  that  no  bridge  on  that  site  could  stand.  There- 
npon  he  hied  his  bill  for  relief  from  the  bond  ;  and  upon 
his  building  a  bridge  upon  a  neighboring  site  where  it  could 
stand,  and  submitting  to  an  issue  of  quantum  damnlficatus 
by  the  change  of  site,  he  w^as  relieved  from  the  penalty  of 
the  bond. 

§  984.  Where  a  contract  is  in  its  original  form  obnoxious 
to  difficulties  on  the  score  of  illegality,  but  can,  neverthe- 
less be  lawfully  j)erformed  in  substance,  the  court  will  so- 
model  it  as  to  effectuate  this  purpose.  ^  Thus  it  having  been 
made  by  statute  illegal  to  contract  for  the  tenant  to  pay  the 
rent-charge,  a  contract  for  a  lease,  stipulating  that  the 
tenant  should  pay  a  certain  sum  for  rent  and  also  the  rent- 
charge,  may  be  carried  into  effect  by  the  court  by  means  of 
a  lease  reserving  as  rent  the  two  sums  in  the  contract  treated 
respectively  as  rent  and  rent-charge.  (^) 

§  985.  But  such  modelling  can  only  apply  to  matters  of 

(z)  Per  Lord  Hardwicke  in  Att-Gen.  v.       (c)  Per  Lord  Redesdale  in  Davis  v.  Hone^ 

Day,  1  Ves.  Sen  ,2-24.  2  Sch.  &  Lef.  351;  Errlngton  v.  Aynesly,  % 

(a)  3  Sw.,427n.  Bro.  C.  C,  341. 
(6)  Paxton  v.  Newton,  2  Sm.  &  Gif.,  437.  (rf)  Carolan  v.  Brabazon,  3  Jon.  &  L.,  20O. 


INCAPACITY    OF   THE    DEFEXDAXT.  485 

form.  So  where  an  incumbent  was  under  a  statute  able  to 
grant  a  lease  with  rent  payable  half-yearly,  the  court 
declined  to  compel  the  lessee  to  take  a  lease  with  a  leserva- 
tion  of  rent  payable  quarterly :  the  mode  of  reservation  of 
rent  was  held  to  be  an  essential  pai-t  of  the  contract. (d) 

§  986.  The  court  will  probably  be  anxious  to  execute  a 
contract  cy  pres,  where  ])y  subsequent  legislation  a  contract 
originally  valid  may  have  become  invalid  in  part.  Thus 
where  a  dean  and  chapter,  prior  to  the  disabling  statute  of 
13  Eliz.,  covenanted  for  the  renewal  of  a  lease  for  ninety- 
nine  years,  and  the  plaintiff  brought  his  bill  asking  for  a 
renewal  for  such  term  as  the  corporation  could  grant  under 
tlie  statute,  it  was  ultimately  decided  by  the  House  of 
Lords,  in  accordance  with  the  opinion  of  Jekyll,  M.  R.,  but 
overruling  the  judgments  of  Lord  King,  Lord  Raymond,  C. 
J.,  and  Price,  J.,  that  the  plaintiff  was  entitled  to  this  cy 
pres  relief.  (/') 

§  987.  It  seems  that  in  some  cases  in  which  the  contract 
would  be  incapable  of  being  specifically  enforced  in  its  very 
terms  for  other  reasons  than  illegality,  it  may  be  executed 
by  the  court  cy  pres  if  such  a  plan  is  feasible.  In  one 
case  there  was  a  contract  entered  into  by  the  defendants 
within  two  years  to  procure  the  heir-at-law  of  A.  B.  to  con- 
vey certain  estates  to  the  plaintiffs,  or  Avithin  the  same 
p)eriod  to  petition  the  House  of  Lords  for,  and  to  use  their 
utmost  endeavors  to  procure,  an  act  of  Parliament  for 
substituting  a  trustee  in  place  of  the  heir,  in  case  such  heir 
could  not  be  found,  or  there  was  no  heir :  on  a  bill  tiled  for 
the  performance  of  this  conti'act,  the  court  decreed  the 
defendants  to  allow  their  names  to  be  used  in  an  application 
to  ParliaYnent  for  the  act.(<7)  A  contract  by  a  person  to  use 
his  utmost  endeavors  seems  to  be  one  which  the  court  could 
not  specifically  execute. 

§  988.  In  some  railway  cases,  the  court  has  shown  a 
great  inclination  to  regard  what  it  considers  as  a  substance 
of  the  contract.  In  one  case,  company  A.  contracted  with 
the  plaintiff  for  the  purchase  of  the  lands  required  for  their 
proposed  line,  and  for  the  withdi-awal  of  his  oj^position  in 
consideration  of  £20,000  to  be  paid  to  him,  in  case  the  bill 

(e)  Je.Dklna  v.  Green  (No   2),  27  Beav.,  440.    Paul's,  Sel.  C.  In  Ch.,  66  (Nov.  1720);  supra, 
(  f)  Beteowtirlii  v.  Dean  ana  Chapter  of  jst.    §  39 

{g)  Frederick  v.  Coxwell,  3  Y.  &  J.,  514. 


4bG         FUY  ON  SPKCIFIC  PEUFOiniANCK  OF  CONTKACT?^. 

sliould  pass  into  law  :  there  was  a  rival  company  B.,  which 
would  require  different  lands  of  the  plaintiff  :  by  agreement, 
made  between  the  two  companies  during  the  proceedings 
before  the  committee  of  the  commons,  it  was  agreed  that  a 
reference  should  be  made  as  to  which  of  the  two  lines  should 
be  carried  into  effect,  and  that  the  successful  company 
should  take  to  all  the  engagements  of  the  other.  The  line 
of  company  B.  was  ai:»proved,  and  company  A."s  bill  was 
accordingly  withdrawn :  company  B.  refused  to  pay  the 
plaintiff  the  £'2(),0()(),  alleging,  amongst  other  things,  that  it 
was  conditional  on  the  bill  of  company  A.  passing,  and  that 
the  lands  required  were  not  those  contracted  for :  but  on  a 
bill  filed  by  the  plaintiff  against  them,  their  demurrer  Avas 
overruled  by  Shad  well,  V.  C,  and  Lord  Cottenham.(/?)  In 
a  subsequent  case,  however,  the  same  vice  chancellor  con- 
sidered the  passing  of  a  bill  of  an  amalgamated  company 
sufficiently  distinct  from  the  passing  of  the  bill  of  one  of  the 
comj^anies  to  relieve  the  amalgamated  company  from  a  con- 
tract binding  in  case  of  the  bill  of  the  one  company  pass- 
ing. (/)  The  decree  was  affirmed  by  Lord  Cottenham,  but 
on  a  different  ground. (j) 

§  989.  Where  a  contract  is  in  the  alternative,  so  as  to 
give  an  election  to  the  party  to  perform  it,  and  one  of  the 
alternatives  is  at  the  time  of  the  contract,  or  subsequently 
becomes,  impossible,  the  question  arises  how  far  the  con- 
tracting party  is  bound  to  the  performance  of  the  alternative 
that  remains  possible.  The  cases  seem  to  divide  them- 
selves into  (1)  those  where  one  alternative  is  impossible  at 
the  time  of  the  contract,  (2)  where  it  becomes  so  subse- 
quently to  the  contract,  but  before  election,  by  the  act  of 
God,  or  (3)  by  the  act  of  the  other  party  to  the  contract,  or 
(4)  by  the  act  of  a  stranger,  and  (5)  those  cases  where  the 
impossibility  arises  after  election.  The  different  cases  are 
briefiy  considered. 

§  990.  (1)  Where  at  the  time  of  the  contract  one  alterna- 
tive is  impossible  or  void,  the  party  to  execute  the  contract 
is  bound  to  the  performance  of  the  other  alternative,  (/t)     So 

(ft)  Stanley  v.CbPstcran'l  Birkenhead  Rail-  Great  Northern  Railway  Co.,  10  FTa  ,  (64; 

way  Co  ,  9  Sim  , '264 ,  S   C  3  My.  &  Tr. ,  773.  King  v.  Arcumiilhtive  Asturai.ce  Co  ,  3  C. 

(i)  Greenhaigh  v.  Manchester  ami  Biiiuiug-  B.  N.  >.,  151;  Kearns  v.  Lea),  1  H.  &  M.,  681. 

ham  Railway  Co  ,'.»  Sim..  41G  (i-)  Com.  Dig.   Comlit.   IC,    2,    Wigley   v. 

(i)  3  My.  &  Cr  ,  784.    bee  lurllier,  as  to  the  Blackwal,  Cro.  Eliz.,  780. 
rcbulis  ofanialgauiaiioD,  Earl  ol  Liridsey  v. 


INCAPACITY    OK    'HIE    DKFKX  DA  XT.  487 

where  the  condition  oi'  u  bond  was  to  pay  a  certain  .sum,  or 
render  in  execution  a  person  wiio  had  been  previously  dis- 
chai'ged,  and  the  court  held  the  latter  alternative  illegal  and 
void,  it  was  decided  that  the  obligor  was  bound  to  perform 
the  other,  and  that  not  having  done  so,  the  bond  Avas  for- 
feited.(Z)  And  where  an  award  dii-ected  that  a  sum  of 
money  should  be  paid  or  be  secured  to  be  j^aid,  and  did  not 
define  the  security  to  be  given,  and  the  question  was  whether 
the  award  was  Qot  void  for  uncertainty  :  it  was  held  not  to 
be  so,  on  the  ground  that  if  an  award  direct  one  of  two 
things  to  be  done  in  the  alternative,  and  one  is  void  for 
uncertainty  or  is  imjiossible,  it  is  yet  incumbent  on  the 
party  to  perform  the  other  of  them.(?/0 

§  001.  (2)  The  leading  authorit}^  on  the  second  class  of 
cases  is  Laughter's  case,(;i)  where  it  was  laid  down,  •'  that 
where  a  condition  of  a  bond  consists  of  two  parts  in  the  dis- 
junctive, and  both  are  possible  at  the  time  of  tlie  bond  made, 
and  afterwards  one  of  them  becomes  impossible  by  the  act  of 
God,  the  obligor  is  not  bound  to  perform  the  other  part." 
On  this  case  it  may  be  remarkfd  in  the  first  place,  that  the 
case  itself  did  not  require  the  enunciation  of  the  principle. (o) 
as  both  alternatives  in  the  bond  there  i)ut  in  suit  wei-e 
rendered  impossible  ',{p)  and  in  the  second  place,  it  is  to  be 
observed,  that  subsequent  decisions  show  that  the  principle 
was  stated  too  broadly,  and  that  even  at  common  law  the 
intention  of  the  parties  has  been  gathered  from  the  jnirticu- 
lar  language  of  each  instrument.  In  the  case  of  Studliolmes 
V.  Mandell,(7)  the  court  said  that  the  rule  and  reason  of 
Laughter's  case  ought  not  to  be  taken  so  largely  as  Coke 
has  reported  it,  but  according  to  the  nature  of  the  case  ;  and 
Treby,  C.  J.,  quoted  a  case  in  which  a  bond  was  conditioned 
either  to  make  a  lease  for  the  life  of  the  obligee  before  such 
a  day  or  to  pay  £100,  and  the  obligee  having  died  before 
the  day,  it  was  held  in  the  common  pleas  that  the  obligor 
should  pay  the  £100.  And  in  Diummond  v,  Duke  of 
Bolton, (r)  in  an  action  on  a  bond  conditioned  to  pay  or 
secure  to  the  plaintiff  or  her  children  by  William  Ashe,  her 

l^  Da  Costa  v.  Davis,  1  B.  &  P  ,  iii.  (o)  Bsrkworth  v   Young.  4  Drew,  i,  j*. 

{in)  siinmoii(l-i  v.  Swalne,  1  Taunt..  .549.  {p)  See  ilif  case  In  rro.  Eiiz  ,  3Jt8 

(/»)  5  Rep., -21,  b.;  !S.  S  ,  s  n.  KatonV  ca^e,        iqt  1  Lonl  Rayiu,  it'.';  aihui,  1  >alk  ,  170. 
^loore,  3.i7;   a    n.  Katim  v.  Laughter,  Lr-.        (/•)  -as, 'i4o     .>ie,  also,  |i.  r  W  alineslBj ,  J., 

Eliz  ,  39S;  acconllugly  Warner  v.  vV  hite,  T.  in  More  v.  Alorecouib,  Cro.  bl;z.,  e64. 
Jon.,  95. 


488        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

then  intended  husband,  £3.000  within  six  months  after  the 
defendant  slionld  become  Duke  of  Bolton,  the  defendant 
pleaded  that  AVilliam  Ashe  died  without  having  any  children 
before  the  defendant  became  Duke  :  but  the  plea  was  over- 
ruled, on  the  ground  that  the  intention  of  the  parties  must 
be  regarded,  and  that  it  could  never  have  been  their  inten- 
tion that  the  money  should  not  be  paid  to  the  plaintiff  in 
case  she  should  not  have  a  child  by  William  Ashe  at  the 
time  of  the  plaintiff  becoming  Duke,  though  if  she  then  had 
a  child,  the  defendant  might  have  had  his  election  to  whom 
to  pay  the  money. 

§  992.  And  this  view  of  the  law  was  fully  supported  in 
a  case  before  Kindersle}',  V.  C,  on  a  promise  by  A.,  on  the 
marriage  of  his  daughter  with  B.,  that  he  would  at  his  death 
leave  to  his  daughter  an  equal  portion  with  his  other  chil- 
dren. The  daughter  died  in  the  lifetime  of  her  father, 
leaving  children,  and  this  circumstance  was  argued  to  be  a 
discharge  from  the  contract  by  an  act  of  God.  But  the  vice 
chancellor  held  the  contract  might  have  been  performed  in 
either  of  two  ways, — namelv,  by  A.'s  making  a  provision 
for  his  daughter  by  will  or  by  his  dj'ing  intestate :  and  that 
though  the  death  of  the  daughter  iDrecluded  him  from  per- 
forming it  in  the  first  way,  he  was  not  thereby  exonerated 
from  performing  it  in  the  second,  and  that  the  bill,  by 
which  the  husband  prayed  for  an  equal  share  in  the  testa- 
tor's  residuary  estate,  w-as  not  on  that  ground  demurrable,  (.s) 
His  honor,  after  referring  to  some  of  the  previous  cases, 
expressed  his  oi:)inion  that  it  is  impossible  to  lay  down  any 
universal  proposition  either  way,  and  that  each  case  must 
depend  upon  the  intention  of  the  parties :  but  that  where 
this  intention  is  clear  that  one  of  the  parties  shall  do  a 
certain  thing,  but  he  is  allowed  his  oj)tion  to  do  it  in  one  or 
other  of  two  modes,  and  one  of  these  modes  becomes  imjiossi- 
ble  by  the  act  of  God,  he  is  bound  to  j^erform  it  in  the  other 
mode :  and  that,  in  the  case  before  the  court,  it  was  mani- 
festly the  intention  of  the  parties  that,  in  one  way  or  other, 
the  daughter  should  have  an  equal  share  of  the  testator's 
property  ;  and  that  if  the  father  was  prevented  by  the  act 
of  God  from  performing  his   obligation   in   one  way,  he 

(s)  Barkworth  v.  Young,  4  Drew  ,  1. 


INCAPACITY    OF   THE   DEFENDANT.  489 

was  bound  to  perform  it   in   the   otlier  way,  which   was 
possible.  (^) 

§  9»:i.  In  Jones  v.  Howe(%)  a  father  on  the  marriage  of 
his  daiigliter  covenanted  by  some  act  inter  vivos  or  by  will 
to  leave  his  daughter  a  certain  provision  :  no  act  inter  T'rnos 
was  done  by  the  covenantor,  nor  did  his  will  contain  any 
provision  for  her  :  the  daughter  died  in  the  lifetime  of  the 
father :  the  court  of  common  pleas,  on  a  case  stated  for  its 
opinion  by  direction  of  Wigram,  Y.  C,  held  that  the  cove- 
nantee had  no  cause  of  action,  on  the  ground,  it  appears,  of 
the  i^rovision  by  will  having  failed  by  the  death  of  his 
daughter,  and  a  consequent  exemption  from  liability  to  i^er- 
form  the  other  alternative.  The  vice  chancellor,  though 
expressing  an  opinion  that  by  this  view  the  intention  of  the 
parties  was  disapi)ointed,  as  the  provision  was  intended  to 
be  absolute,  and  the  mode  of  making  it  only  intended  to  be 
left  to  the  discretion  of  the  covenantor,  yet  confirmed  the 
certificate,  and  dismissed  the  bill  with  costs. 

§  994.  (8)  Where  one  of  the  alternatives  becomes  impos- 
sible by  the  act»or  default  of  the  party  for  whose  benefit 
the  contract  is  to  be  executed,  the  other  alternative  is  dis- 
charged and  need  not  be  performed. (»)  Therefore  in  debt 
on  an  obligation  conditioned  for  the  delivery  up  by  tlie 
defendant  to  the  plaintiff  of  three  obligations  in  which  the 
plaintiff  is  bound  to  the  defendant,  or  for  the  execution  to 
the  plaintiff  such  release  of  them  as  should  be  devised  by 
the  plaintiff' scounsil  before  Michaelmas,  a  plea  that  neither 
the  plaintiff'  nor  his  counsel  devised  any  release  before 
Michaelmas  was  held  good  by  a  majority  of  the  Judges  in 
the  Queen's  bench,  on  the  ground  that,  where  the  obligee 
disables  the  obligor  to  perform  the  one  part,  the  law  dis- 
charges him  from  the  other,  {w)  This  authority  Avas  followed 
by  another  case  in  tlie  same  court,  in  which,  in  debt  on  a 
bond  by  the  defendant  conditioned  to  grant  an  annuity 
within  six  months  after  the  death  of  A.,  and  if  he  refused, 
on  request  then  to  pay  £800,  a  plea  that  no  grant  had  been 
tendered  within  six  months  was  held  good.(ir) 

(<)  Page-25     The  rule  ofthe  civil  law  seems  (u)  7Ha.,2t57;  S.  C. '.»  C.  B.,  1. 

to  agree  with  tlilH.     ".si  quia  illuil  vul  illuil  (r)  (oni.Uig  Condlt.  K  , 'i. 

Btipulutus    sit,    t"t   oldifjail'ines    sunt  (juot  (wj  Oreniiinghani  v.  Ewer,  Cro.  Eliz.,  396, 

corpora:  qiiarc.  ti  alt"  ra  res  ex  (|uaciiiique  .WJ 

causa  d  irl   iion   potest,  altera   iiihilomiiius  (X)  Basket  v.  Basket,  1  Mod.,  265;  2  id.,  200. 
dabitur."— Warnkoiilg,    Instit.    Jur.    Horn. 
Prlv   lib.  111.  c.  2,  t.  1,  §  79i. 


490        FRY  OX  SPECIFIC  PEUFOKMANCE  OF  CONTRACTS. 

§  995.  The  principle  of  these  rases  is  obvious.  The  con- 
tract gives  the  party  to  perform  an  election,  and  creates  an 
obligation  to  perforin  only  the  elected  thing,  but  the  other 
party  has  destroyed  tlie  election  and  so  lias  released  the  per- 
forming x>arty  from  liis  obligation  to  do  anything. 

§  996.  (4 )  Where  one  alternative  is  prevented  by  the  act 
of  a  stranger  rendering  its  performance  impossible,  the 
other  alternative  must  be  performed.  This  was  held  in  a 
case  in  the  4th  of  Henry  VII.,  which  decided  that  if  one  be 
obliged  to  enfeoff  me  to  certain  lands,  or  to  marry  A.  S. 
before  such  a  day,  and  a  stranger  marry  A.  S.  before  the 
day,  the  obligor  must  make  a  feoffment  of  the  lands  :  but 
otherwise  if  the  obligee  married  A.  S.  before  the  day,  for 
then  the  other  alternative  is  discharged. (?/) 

§  997.  (5)  If,  after  the  party  to  ]3erform  had  elected  to 
perform  one  alternative,  that  alternative  becomes  impos- 
sible, the  effect  of  the  impossibility  is  precisely  the  same  as 
in  the  case  of  a  single  contract,  for  by  election  the  contract 
has  become  single.  The  performing  party  therefore  is  ordi- 
narily liable  in  damages. (£)'  % 

(y)  Quoted  in  Grenningham  v.  Ewer,  Cro.  (s)  Rrown  v.  Royal  Insurance  Co.,  ]  El.  & 
Eliz.,397.  E1.,8.'J3 

'  Contract  entire  ;  no  equitable  middle  y von nd  ;  vendee  must  pay  the  whole  jvir- 
cJtMse  money. '\  The  contract  for  the  sale  of  an  estate  was  entire,  for  a  .sum  in 
gro.ss,  and  there  was  a  faihxre  of  title  to  considerable  portion,  both  parties  being 
ignorant  of  the  defect  at  the  time  of  the  sale.  There  was  no  equitable  middle 
ground  between  an  entire  performance  and  an  entire  rescission.  Held,  that  if 
the  vendee  declined  to  rescind,  he  must  pay  the  entire  purchase  monej'.  Glas- 
sell  V  Thomas.  8  Leigh,  118;  Bailey  v.  James,  11  Grait.,  40S;  Gillman  v. 
Hinckle,  8  W.  Va.,  202;  Etheridge  v.'Vernoy,  70  N.  C,  713- 

Statement  of  tlie  quantity  of  acres  mere  matter  of  description.']  "  The  number 
or  quantity  of  acres,  after  a  certain  description  by  metes  and  liounds,  or  by 
other  known  specifications,  is  but  matter  of  description,  and  does  not  amount 
to  any  covenant  though  the  quantity  of  acres  should  fall  short  of  a  given 
amount.  Whenever  it  appears  by  the  defining  bouudaries,  or  by  words  of 
qualification  as  '  more  or  Jess,'  or  as  '  containing  by  estimation,'  or  the  like,  that 
the  statement  of  the  quantity  of  acres  in  the  deed  is  mere  matter  of  description, 
and  not  of  the  essence  of  the  contract,  the  buyer  takes  the  risk  of  the  quantity, 
if  there  be  no  admixture  of  fraud  in  the  case."     4  Kent's  Com.,  460. 

Tract  c^mtaining  much  le-'^s  than  agreed ;  map  slmicn.']  The  vendee  made  a 
purchase  under  the  belief,  which  he  had  good  reason  to  entertain,  that  the  farm 
sold  contained  a  given  number  of  acres,  the  representations  as  to  the  amount 
was  made  by  the  vendor,  who  exhibited  a  map  of  the  property.  Held,  that 
where  the  farm  contained  very  many  less  acres  that  equity  would  not  compel 
the  vendee  to  accept  the  property.  Kent  v.  Carcand,  1 T  Md.,  291 ;  Winston  v. 
Browning,  61  Ala.,  80:  Foley  v.  McKown,  4  Leigh,  678;  Miller  v.  t'hetwood, 
1  Green's  (N.  J.)  Ch.,  199;  .see,  also,  Brooks  v.  Hiding,  46  lud.,  15. 

Example  of  no  abatement  in  price,  tchere  tract  contained  much  less  than  de- 
scribed.] A  lot  was  sold,  the  contract  providing  that  the  vendee  should  pay  a 
definite  sum  "for  wharf  lot  on  Border  street;"  the  lot  was  further  described 


IXCAPACITY    OK   TIIK    DLFKNDANT.  491 

as  bounded  on  two  sides  b}' ship-yurds  of  named  parties,  and  as  "measuring 
about  two  hundred  and  twenty  ieet  on  Border  street,  more  or  less."  The  lot 
in  fact  measured  only  one  Imndred  and  seventy  feet  on  Border  street,  and  the 
value  of  the  lot  was  shown  to  be  in  propoi  tion  to  the  uuml)er  of  feet  on  the  line 
of  that  street  Long  before  the  contract  tlie  title  deeds  of  the  lot  were  matter 
of  public  record  and  showed  the  actual  Ijounduries  and  extent  of  the  lot. 
Neither  the  plaiutilf's  agent,  or  tlie  defendant,  had  actual  knowledge  of  those 
deeds.  Held,  Gray,  J.,  delivering  the  oiiinion,  which  was  unanimously  con- 
curred in,  that  no  abatement  of  tlie  price  could  be  had.  Noble  v.  Godking,  99 
Mass.,  231;  see,  also,  Stebhins  v.  Eddy.  4  .Mason,  414;  ^larvin  v.  Bennett,  8 
Paige's  C:h.,  :^12;  Morris  Canal  Co.  v.  Emmett,  9  id.,  16.S;  Fame  v.  Martin,  7 
N.  Y.,  219:  Ketchum  v  Stout,  20  Ohio.  4W;  Stull  v.  Hunt,  9  Gill..  44G;  Weart 
V.  Rose,  16  N.  J.  Ecj  ,  290;  Stevens  v.  Hudson,  4.5  Ga.,  old. 

W^here  the  irordx  •'more  or  lexK"  are  nsed.'^  In  Stebbins  v.  Eddy.  4  Mason, 
414,  Story,  J.,  said:  "It  seems  to  me  that  there  is  much  good  sense  in  holding 
that  the  words  'more  or  less.'  or  other  e(4uivalent  words,  used  in  contracts  or 
conveyances  of  this  .sort,  should  be  construed  to  qualify  the  representation  of 
quantity  in  such  a  manner  that,  if  made  in  good  faith,  neitlier  party  should 
be  entitled  to  any  relief  on  account  of  any  deticiency  or  surplus.  Nor  am  I 
prepared  to  admit  that  the  fact  that  the  sale  is  not  in  gross,  but  for  a  specifjc 
sum  by  the  acre,  ought  necessarily  to  create  a  dilference  in  the  application  of 
the  principle.  I  do  not  .say  that  cases  may  not  occur  of  such  extreme  deticiency 
as  to  call  for  relief ;  but  they  mu.st  be  such  as  would  naturally  raise  the  pre- 
sumption of  fraud,  impcjsilion  or  mistake  in  the  very  es.sence  of  the  contract. 
Where  the  sale  is  fair  and  the  parties  are  eciually  innocent,  and  the  (juantity  is 
sold  by  estimation  and  not  by  measurement,  then  is  little,  if  any,  hardship,  and 
much  "convenience,  in  holding  to  the  rule  anrat  emptor."  See,  also,  Pedens  v. 
Owens,  Rice.'s  Eq  ,  5.j;  Brown  v.  Parish.  2  Dana,  9;  Hill  v.  Buckley,  17  Ves., 
394;  Smith  v.  Evans,  6  Bin.,  102;  Howes  v.  Barker,  3  .lohns.,  50G;  Twyfard 
V.  Wareup,  Finch,  310;  Marvin  v.  Bennett,  8  Paige's  Ch.,  312. 


492        FRY  ON  SPECIFIC  PERFORMAXCE  OF  CONTRACTS. 


CHAPTER  XXIV. 

OF   THE   RESCISSION   OF   THE   CONTRACT. 

§  998.  The  rescission  of  a  contract  necessarily  consti- 
tutes a  bar  to  its  performance  by  either  of  the  parties  to  it. 
The  rescission  may  result  from  : 

(1)  A  simple  agreement  between  the  parties  to  rescind  the 
contract. 

(2)  An  agreement  between  the  parties  to  new  terms  which 
put  an  end  to  the  terms  of  the  old  contract. 

(3)  An  agreement  between  the  original  parties  and  a  third 
person,  by  which  the  third  person  takes  the  place  of  one  of 
the  original  contractors. 

(4)  An  exercise  of  a  power' to  rescind  reserved  by  the  con- 
tract to  one  or  both  of  the  contractors. 

(5)  An  exercise  of  the  right  to  rescind  which  results  to 
the  injured  party  from  fraud  or  mistake  in  relation  to  the 
contract. 

(6)  An  exercise  of  the  right  to  rescind  wiiich  results  to 
one  party  from  the  other  party's  absolute  refusal  to  per- 
form the  contract  or  unreasonable  delay  in  its  performance. 

(7)  An  exercise  of  the  right  to  rescind  which  results  to 
one  party  from  the  other  party's  having  made  performance 
impossible. 

1.  A  simple  agreement  to  rescind.'' 
§  999.  Generally  speaking,  the  parties  to  a  contract,  sup- 
posing them  both  to  continue  sui  juris  and  capable  of  con- 

'  When  an  asreement  is  thus  rescinded  by  novation,  the  contract,  or  contracts, 
in  existence  prior  to  the  novation,  lose  their  individuality  and  become  merged  in 
the  new  contract.  Pierce  v.  Dorr,  S  Pick.,  2;jy,  is  a  case,  at  lawr,  of  this  nature. 
The  bill,  in  that  case,  charged  that,  on  March  21,  181 1,  A.  lent  B.  $;^,000.  re- 
ceiving as  security  B  's  deed  of  certain  lands,  but  giving  no  instrument  of  de- 
feasance; that  B.  repaid  the  sum  lent,  taking  notes,  whereby  A.  promised  to 
pay  the  sums  repaid,  with  interest,  when  the  lands  conveyed  to  him  should  be 
sold,  if  they  produced  the  sums  expressed  as  their  consideration,  with  interest, 
and  if  not,  the  deficit  was  to  be  regarded  as  part  payment  of  A.'s  notes;  that  A. 
connected  this  with  a  former  and  separate  transaction,  by  which  A.  had  on 
]\Iarch  7.  181 1,  received  au  absolute  conveyance  of  certam  other  land  as  security 
for  another  debt;  that  the  value  of  the  laud  exceeded  the  amount  of  B.'s  debt, 
and  that  it  was  understood  that  A.  should  sell  the  land,  and  after  deducting  the 


THE   RESCISSION   OF   THE   CONTRACT,  493 

traoting,  have  a  right  to  determine  it  bj^  an  agreement  to 
rescind  it,  or  to  use  other  words,  a  waiver  and  abandonment 
by  mutual  consent  of  the  parties :  and  tliis  they  may  do 
even  when  the  contract  between  them  affects  the  interests  of 
some  third  person  ;  except,  it  seems,  where  there  has  been 
a  part  performance  of  it  affecting  the  third  person.  So  that 
where  A.  by  deed  contracted  with  B.  that  A.'s  son  should 
reside  with  and  be  brought  up  by  B.,  who  covenanted  to 
leave  him  certain  property,  and  there  was  no  appreciable 
part  performance  as  regards  the  child,  so  that  his  condi- 
tion in  life  had  not  been  altered,  and  no  exception  on  his  part 
was  defeated,  it  was  held  that  A.  and  B.  might  by  agree- 
ment rescind  the  deed,  though  it  would,  it  seems,  have  been 
different  if  there  had  been  any  part  performance  affecting 
the  child.  («) 

§  1000.  An  agreement  to  rescind  a  contract  which  is  in 
writing(Z>)  or  under  seal(c)  may  clearh*  in  equity  be  by  parol. 

(a)  Hill  V.  Gomnie,  1  Beav  ,  540;  S.    C.  5  Lanesborough  v.  Ockshott,  1  Bro.  P.  C,  151. 

My.  &  Or  ,  250;  supra,  §  182.  See,  lor  the  doctrine  at  tjommon  Law,  Goss 

lb)  Uavis  V.  iSyraouds,  1  Cox,  402,  406.  v.  Lord  Niieent,  5  B  &  A.  D.  58;  Harvey  v. 

(c)  Hill  V.  Gomme,    1  Beav.,  540;    Lady  Grabham,  5  A    &  E.,  61 

amount  of  said  debt,  pay  the  surplus  to  B  It  was  also  charged  that  in  May, 
1813,  A.  and  B.  signed  an  agreement  stating  that  A.  had  bought  the  above 
named  lands  of  B.,  and  that  B.  desired  to  repurchase  them,  and  binding  A.  on 
the  payment  of  $8,296.40  in  two  years,  with  interest,  to  quit-claim  said  laud  to 
B.,  and  also  binding  A.  to  convej'  said  lands,  whenever  before  two  years  a  fair 
price  could  be  obtained,  and  to  apply  the  proceeds  to  the  payment  of  the  afore- 
said sum,  and  the  surplus,  if  any,  to  be  paid  to  B.  A.'s  notes  were  then  given 
up  to  him.  Held,  that  this  agreement  was  a  merger  of  all  the  previous  ones, 
and  that  a  bill  to  enforce  a  Irust  arising  therefrom  could  not  be  maintained. 
See,  also,  Reed  v.  McGrew,  5  Ham.,  380.  Agreements  may,  of  course,  at  all 
times  be  entered  into  by  parties  for  the  rescission  of  prior  executory  contracts, 
provided  that  they  continue  interested  in  the  original  agreement  until  the  agree- 
ment to  rescind  is  made.  Johnson  v.  Reed,  9  Mass.,  78;  Blood  v.  Enos,  13 
Verm.,  625;  England  v.  Jackson,  3  Humph.,  58 i.  But  an  offer  to  rescind  an 
agreement  will  not  be  binding  before  it  is  accepted  by  the  other  party,  bj'  doing 
what  is  proper  to  be  done  by  him  toward  the  rescission,  although  the  agreement 
has  been  delivered  up  for  cancellation  Fripp  v.  Fripp,  Rice's  Ch.,  84.  When 
the  administrators  of  parties  to  an  unexecuted  contract  for  the  sale  of  lands 
make  an  arrangement  to  rescind  it,  advantageous  to  the  purchaser,  a  court  of 
equity  will  not  permit  an  heir  to  set  it  up  again.  Howard  v.  Babcock,  7  Ham. 
(2d  pt.),  73.  Tliere  are  agreements,  however,  which  subsequent  contracts  will 
not,  in  all  cases,  annul.  Thus,  for  example,  where  there  is  an  agreement,  upon 
an  adequate  consideration,  to  pay  a  certain  sum,  it  cannot  be  avoided  by  an 
agreement  to  receive  a  less  sum.  Geisner  v.  Kerslmer,  4  Gill  ».t  Johns.,  305; 
Seymour  v.  Minturn,  17  id.,  169;  also,  Inman  v.  Griswold,  1  Cow.,  199;  Make- 
peace V.  Harvard  College,  10  Pick.,  298.  Yet,  if  a  creditor  agree  with  an  in- 
solvent and  embarrassed  debtor,  that  he  will  procure  security  for  a  part  of  the 
debt,  he  will  release  the  residue,  and  the  debtor  performs  the  agreement,  it  con- 
stitutes a  valid  contract ;  and  if  the  creditor  afterwards  enforce  pajmient  of  the 
whole,  the  debtor  may  recover  damages  for  a  violation  of  the  contract.  Col- 
born  V.  Gould,  1  M.  H..  279. 


494        FRY  ON  SPECIFIC  PEUFOUMAXCE  OF  CONTRACTS. 

§  lOOl.  Against  tliis  conclusion  various  arguments  have 
at  various  times  been  raised  :  it  lias  been  urged  that  the  rule 
of  law  does  not  allow  the  variation  of  a  contract  that  has 
been  reduced  to  writing  to  be  evidenced  by  parol ;  but  to 
this  it  has  been  replied  that  rescission  is  not  variation,  that 
the  law  allows  parol  evidence  of  matters  collateral  to  a  con- 
tract, (f^)  and  that  rescission  or  waiver  being  in  its  nature 
subsequent  and  collateral  to  the  contract  may  therefore  be 
proved  by  parol  testimony,  (e) 

§  100^.  Again,  it  has  been  urged  that  the  statute  of 
fraud  precludes  parol  evidence  of  rescission  of  contracts 
relating  to  land  :  for  a  contract  to  waive  a  purchase  of  land 
as  much  relates  to  land  as  the  original  contract,  (e)  But  it 
is  replied  that  the  rescinding  contract  is  not  the  contract  on 
which  the  action  is  brought,  and  that  whilst  the  statute 
provides  that  no  action  shall  be  brought  on  any  contract  of 
the  descriptions  there  specified,  except  it  be  in  writing,  it 
does  not  provide  that  every  such  written  contract  shall  sup- 
port an  action.  In  the  result  it  is  perfectly  well  ascertained 
that  a  contract  in  writing,  and  by  law  required  to  be  in  writ- 
ing, may  in  equity  be  rescinded  by  parol ;(/)  and- waiver 
by  mutual  parol  agreement  therefore  furnishes  a  sufficient 
defense  to  an  action  for  specific  performance.  (//) 

§  1003.  Any  circumstances  or  course  of  conduct  from 
whence  can  be  clearly  deducted  an  agreement  to  put  an  end 
to  the  original  contract  will  amount  to  a  rescission  of  it. 
Thus,  to  give  one  or  two  examples :  where,  on  default  in 
payment  of  the  purchase-money,  one  party  said  to  the  other 
that  there  must  be  an  end  of  the  negotiation,  and  the  other 
assented,  the  contract  was  held  to  have  been  rescinded.  (^) 
And  where  the  vendor  was  allowed  for  a  long  period  to 
remain  in  possession,  and  the  purchaser's  representatives 
seventeen  years  afterwards  treated  themselves,  in  a  deed 
between  the  parties,  as  entitled  to  interest  on  the  debt 
which  had  been  the  consideration  for  the  sale  and  not  to  the 

(d)  Pym  V.  Campbell,  6  El.  &  Bl.,  370.  v.  L!ppingwell,2  Dick.,  469;  S.  C.  5  Vin.  Abr. 

(e)  Davis  v  Symonds,  1  Cox,  4ij2,  4:6.  This  616,  pi.  l^;  per  Grant,  M.  R.  in  ex  parte  Lord 
seems  denied,  as  to  waiver  at  Common  Law,  Ilchester,  7  Ves..  377.  See  also  Buckhouse  v. 
by  Lord  Hardwicke  in  Bell  v.  Howard,  9  Mohun,  3  Sw.,  434  n.;  Buckhouse  v.  Crosby, 
Mod.,  305.  2Eq.  Cas.  Abr.,32,  pi..  44 

(«)  Per  Lord  Hardwicke  in  Buckhouse  v.  iff)  Davis  v.  Symonds,  1  Cox,  402;  Bobin- 
Crosby.  2  Eq.  Cas.  Abr.,  33.  son  v.  Page,  3  Russ.,  114. 

(/)  Goman  v.  Salisbury,  1  Vern.,  240;  Inge       (h)  Carter  v.  Dean  of  Ely,  7  Sim.,  211. 


THE    RESCISSION    OF   THE    CONTRACT.  495 

rents  and  profits  of  the  land,  the  contract  was  held  to  have 
been  waived.  (/) 

§  1004.  But  the  court  must  be  satisfied  of  this  total 
abandonment  by  both  parties  to  the  contract.  "The  court," 
said  Lord  St.  Leonards,  "requires  as  clear  evidence  of  the 
waiver  as  of  the  existence  of  the  contract  itself,  and  will  not 
act  upon  less."(,y)  And  in  another  case  his  Lordship  said 
that,  unless  a  party  has  by  his  conduct  forfeited  his  right, 
"abandonment  of  a  contract,  according  to  the  law  of  this 
court,  is  a  contract  in  itself  ;''  and  accordingly  he  refused  to 
hold  a  loose  conversation  which  was  alleged  as  a  waiver  of 
a  contract  for  a  lease  to  amount  to  such  a  new  contract. (^*) 

§  1005.  To  these  cases  may  be  likened  those  where  an 
absolute  refusal  of  one  party  gives  rise  to  a  right  to  rescind 
in  the  other:  the  refusal  must  be  clear,  total,  and  unquali- 
fied. (Z) 

§  1006.  An  agreement  to  rescind  an  existing  contract 
must  amount  to  a  total  abandonment  of  the  whole  contract, 
and  not  to  a  partial  waiver  of  some  of  its  terms :  for  to 
allow  of  such  a  proceeding  in  the  case  of  a  written  contract 
would  .be  to  have  a  contract  proved  partly  by  writing,  and 
partly  by  parol  :(m)  it  would  be  a  parol  novation  of  a  written 
contract,  which  is  inadmissible  where  the  law  requires  the 
contract  to  be  evidenced  by  writing: (71)  and  therefore  the 
agreement,  or  the  circumstances  from  which  it  is  inferred, 
must  show  an  absolute  dissolution  and  abandonment  of  the 
contract,  (o)' 

(i)  Earl  of  Ross  v.   Sterling,  4  Dow,  442.  Avery  v.  Bowilen,  5  El.  &  Bl  ,  714;  6  id  ,  953; 

See  also  Hill  v.  Gomme,  1  Beav.,  54U.  intra,  §  1035. 

0')  Carolan  v.  Brabazon,  3  Jon.  &  L.,  200,  (m)  Goss  v.  Lord  Nugent,  5  B.  &  Ad.,  58.     . 

209;  Whiitakerv.  Fox,  14  W.K  ,19-2;  Harrison  {ti)  luira,  §  1016. 

V.  Brown,  14  W.  R.,  193  n. ;  Cliflord  v.  Kelly,  (o)  Price  v.  Dver,  IT  Ves.,  3o6;  Robinson  v. 

7  Ir.  Ch.  R.,  333;  Cartau  v.  Bury,  10  Ir.  Ch.  Page,  3  Russ.,  114.    Lord  Thurlow  seems  to 

R.,  400.  have  thought  that  a  part  might  be  rescinded 

(k)  Moore  v.  Crofton,  3  Jon.  &  L.,  438,  445;  by  parol,  in  Jordan  v.  Sawkins,  1  Ves.  Jun. 

Whittaker  v.  Fox,  14  \V.  R.,  192.  404. 

(,1)  Ehrensperger  v.  Anderson,  3  Ex.,  148; 

'  Where  a  contract  is  rescinded  it  must  be  entirely  rescinded.  Glassel  v. 
Thomas,  3  Leigh,  118.  So,  where  A.  sold  to  B.  a  plantation  of  slaves,  a  part 
of  whom  had  been  introduced  in  the  State  (Mississippi)  contrary  to  the  consti- 
tution, and  B.  paid  a  large  portion  of  the  purchase  money,  knowing  of  the 
illegal  introduction  of  the  slaves,  it  was  held,  that  the  court  could  not  order  the 
money  to  be  paid  back  and  rescind  the  whole  contract,  and,  therefore,  must 
refuse  its  aid,  the  contract  being  entire,  and  it  being  contrary  to  the  doctrines  of 
equity  to  rescind  a  contract  only  in  part.  Hope  v.  Evans,  1  S.  6:  M.'s  Ch.,  195. 
The  same  principle  is  carried  out  at  law.  Potter  v.  Titconib,  9  Shep.,  300. 
And,  therefore,  where  a  party  to  an  agreement  for  the  purchase  of  land  sought 


496        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

§  1007.  The  cases,  of  which  many  have  arisen  at  com- 
mon kuv  (and  wliich  will  be  considered  siibsequently[^7]), 
of  the  rescission  of  a  contract  by  the  one  party  based  on  an 
absolute  refusal  to  perform  by  the  other,  may  well  be 
broug-ht  under  the  head  of  agreement  to  rescind. 

§  1008.  It  is  to  be  borne  in  mind  that  the  conduct  of  one 
party,  which  may  debar  him  from  insisting  on  a  contract, 
may  yet  not  prevent  its  being  enforced  against  him  or 
amount  to  a  rescission  of  it  :{q)  and  further,  that  there  are 
many  cases  in  Avhich  there  has  been  such  a  departure  in 
conduct  from  the  contract  between  the  parties,  that  the 
court  will  refuse  to  execute  the  contract,  though  the  effect 
of  that  conduct  may  not  have  been  to  substitute  a  valid 
contract  for  the  old  one,  or  absolutely  to  rescind  the  old  one 
for  all  purposes,  (r) 

2.  All  agreement  upon  new  terms. 

§  1009.  Where  the  parties  to  a  contract  come  to  a  fresh 
agreement  of  such  a  kind  that  the  two  cannot  stand 
together,  the  effect  of  the  second  agreement  is  to  rescind  the 
first.     This  is  one  form  of  novatio  in  the  Roman  law. (5) 

§  1010.  But  it  is  not  every  change  in  a  term  of  the 
original  contract  which  will  amount  to  such  a  substitution 
as  to  extinguish  that  contract.  Thus  where  there  was  a 
contract  for  a  lease,  and  a  parol  agreement  was  subsequently 
made  for  the  reduction  of  the  rent,  which,  it  was  contended, 
worked  a  rescission  of  the  original  contract,  Lord  St. 
Leonards  said,  "I  should  be  sony  to  hold  that  because  a 
landlord  abates  the  rent  for  a  time  or  permanently,  he 
therefore  abandons  the  whole  contract.  ^-  *  '••  I  should 
do  a  most  mischievous  thing  were  I  to  hold  that  a  mere 
abatement  of  rent,  wliich  occurs  every  day,  would  altogether 
put  an  end  to  the  existing  contract,  and  create  a  new  tenancy 

(p)  See  infra,  §  1035.  ob'igatlonem  aut  civilesm  autnaturalem  et 

(q)  Price  V.  Assheton,  1  Y.  &  C.  Ex.,  S2.  translatio  :  hoc  est  cum  ex  pra?cedenti  causa 

(r)  An  example  of  this  seems  afforded  by  ita  nova  constituatur,  ut  prior  perimatur." 

the  case  of  the  l^aris  Chocolate  Co.  v.  Crystal  Dig.  lib.  xlvi.  t.  2,  c.  1.    See,  also,  Instit.  lib. 

Palace  Co.,  3  Sm.  &  Gif.,  119.  iii.  tit.  30,  s.  3. 
(«)"Novatlo  est  prioris   deblti  in  aliam 


to  affirm  the  agreement  in  part,  and  rescind  it  in  part,  and  maintain  assumpsit 
for  the  price  paid  for  the  part  which  he  claimed  to  rescind,  the  court  prevented 
him  from  so  doing.  Rinker  v.  Sharp,  5  Blackf.,  185.  Upon  these  grounds,  an 
agreement  which  is  rescinded  in  part  will  be  treated  as  rescinded  in  toto.  Ray- 
mond V.  Bearnard,  12  Johns.,  274. 


THE   EESCISSIOlSr   OF  THE   CONTRACT.  497 

from  year  to  year.  The  abatement  of  the  rent  was  rather  a 
confirmation  of  the  existing  tenancy,  with  a  relaxation  of 
one  of  the  terms  of  it.(^) 

§  1011.  So,  also,  a  suggestion  made  by  either  party  after 
contract  for  the  purpose  of  obviating  any  difficulties  in  the 
completion  of  it,  will  not  be  taken  to  amount  to  a  novation, 
so  to  hold  would  be  to  X3reclude  parties  from  endeavoring 
to  remove  objections  by  concessions  of  any  kind.('?^). 

§'10l!3.  But  where  the  defendant  being  in  possession  of 
-a  house  under  a  contract  for  a  lease,  the  plaintiff  and  the 
defendant  entered  into  a  further  contract  to  the  effect  that 
the  plaintiff  would  accept  H.  W.  as  his  tenant  in  lieu  of  the 
defendant,  and  on  the  same  terms,  the  defendant  under- 
taking to  guarantee  the  rent  during  H.  W.'s  tenancy,  and 
H.  W.  accordingly  for  several  years  occupied  the  property 
and  paid  rent,  it  was  held  that  the  latter  contract  must  be 
considered  a  substitution  for  the  former. («) 

§  1013.  As  it  is  the  existence  of  the  new  contract  that 
works  the  extinction  of  the  old,  this  new  one  must,  of 
course,  be  a  valid  contract :  so  that,  for  instance,  where  a 
second  contract  is  alleged,  but  without  consideration,  the 
original  contract  will  remain  intact,  and  may  be  executed 
without  regard  to  the  second. (?«)' 

§  1014.  This  makes  it  requisite  to  consider  the  evidence 
of  the  new  contract  alleged. 

(1)  Where  the  original  contract  is  by  j)arol,  the  new  one 
may,  of  course,  be  by  parol  also." 

(<)  Clarke  v.  Moore,  1  Jon.  &  L.,  723,  par-       (v)  Moore  v.  Marrable,  Lr.  I  Ch.,  217. 
iicularly  73S-9.  (wj  Rob«on  v.  Collins,  7  Ves.  130. 

(u)  Monro  v.  Taylor,  8  Ha.,  51,  particularly 
61. 

^  In  Thurston  v.  Peicival,  1  Pick.,  415,  services  were  performed  by  one  per- 
son for  another,  and  afterwards  the  parties  entered  into  a  contract  as  to  the 
■compensation,  which  was  illegal.  It  was  held  that  this  agreement  did  not 
operate  as  a  merger  of  the  original  demand. 

^  Possession  undei' parol  gift.]  Naked  posses.sion  under  an  alleged  parol  gift 
of  land  will  not  constitute  such  part  performance  as  will  take  the  case  out  of 
the  operation  of  the  statute  of  frauds  Stewart  v.  Stewart,  3  Watts,  253; 
•Cronk  v.  Trumhle,  66  111.,  428;  Pinckard  v.  Pinckard,  23  Ala.,  649. 

Bule  as  to  the  degree  of  occupation.']  In  order  that  a  court  of  equity  will  decree 
specitic  performance  of  a  parol  agreement  the  possession  of  the  vendee. must  be 
such  that  if  the  vendor  refuses  to  complete  it  will  be  a  fraud  upon  him.  White 
V.  Watkins,  23  Mo.,  423;  Chambers  v.  Lecompte,  9  id.,  566.  Possession  must 
be  tflkpii  with  the  permission  of  the  vendor  and  must  refer  to  and  be  connected 
with  the  contract ;  in  such  a  case  it  shows  a  part  performance  by  the  vendor. 
Lord  v.  Underdunk,  1  Sandf.'s  Ch.,  46;  Beau  v.  Valle,  2  Mo.,  103;  Jar  vis  v. 

32 


498        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

§  1015.  (2)  "Where  the  original  contract  was  in  writing,, 
though  not  by  law  required  so  to  be,  the  new  contract  may 
be  evidenced  in  any  way  which  establishes  it  according  to 
the  principles  of  the  court.  Thus  a  contract,  though  under 
seal,  may  in  the  contemplation  oi'  the  ciourt  of  equity  be 
waived  by  a  course  of  conduct  from  whence  the  presump- 
tion of  a  new  contract  in  substitution  arises.  "  In  ordinary 
partnerships,"  said  Lord  Eldon,  "nothing  is  more  cltiar 
than  this,  that  although  partners  enter  into  a  written  agree- 
ment, stating  the  term  upon  which  the  joint  concern  is  to  be 
carried  on,  yet  if  there  be  a  long  course  of  dealing,  or  a 
course  of  dealing  not  long,  but  still  so  long  as  to  demon- 
strate that  they  have  all  agreed  to  change  the  terms  of  the 
original  written  agreement,  they  may  be  held  to  have 
changed  those  terms  by  conduct.  "(i2?)  And  accordingly,  in 
another  case,  where  a  contract  for  a  partnership  was  decreed 
to  be  specifically  executed,  the  court  directed  an  inquiry 
whether  any  and  what  variations  had  been  made  in  the^ 

(X)  Const  V.  Harris.  T.  &  R.,  496.  523;  Ged-    Sedgwick,  1  Sw  ,  460,  per  Lord  Langdale  M. 
des  V.  Wallace,  2  Bli.,  27u,  297;  Jackson  v.    R.  in  Smitii  v.  Jeyes,  4  Beav.,  505. 

Smith.  1  Hoflf.'s  Ch.,  470;  Givens  v.  Calder,  2  Dessau. 's  Eq.,  171, 190;  Wills  v 
Stradling,  3  Ves.,  381;  Greaiorv  v.  Misrhell,  18  id.,  333:  Thompson  v.  Scott,  1 
McCord's  Ch.,  39;  Cole  v.  White,  1  Bro.,  409;  Morphett  v.  Jones,  1  Swanst., 
179;  Foot  V.  Mitchell,  1  B.  &  B.,  400;  Harris  v.  Knickeibocker,  5  Wend.,  638; 
Aitkin  v.  Young,  12  Pa.  St.,  15;  Cristy  v.  Barnhart,  14  id.,  260;  Carroll  v. 
Cox,  15  Iowa,  455;  Moore  v.  Higly,  45  Ind.,  487.  Lord  Manners,  in  Kine  v. 
Balf e,  2  Ball  &  Beatty,  343,  said :  ' '  Whether  possession  be  an  unequivocal  act 
amounting  to  part  performance  must  depend  upon  the  transaction  itself.  If  it 
be  distinctly  referred  to,  the  contract  alleged  in  the  pleadings,  I  think  no  case 
has  denied  that  it  is  a  part  performance.  The  defendant  is  protected  from  lia- 
bility as  a  trespasser,  and  the  plaintiff  is  disabled  from  dealing  with  any  other 
person."  There  was  a  parol  agreement  for  the  sale  of  a  mining  claim,  under 
which  the  vendee  took  possession,  paying  a  part  of  the  agreed  price  with  the 
proceeds  of  the  mine,  all  of  which  he  appropriated  to  his  own  use.  Held, 
sufficient  to  take  the  contract  out  of  the  operation  of  the  statute  of  frauds. 
Taterm  v.  Brooker,  51  Mo.,  148. 

Length  of  time  of  possession  important.']  LoDg  continued  possession,  with  the 
acquiescence  of  the  vendor,  will  be  regarded  as  a  strong  circumstance  against 
permitting  the  statute  to  be  pleaded.  Blatchford  v.  Kirkpatrick.  6  Beav.,  232; 
Bonier  v!  Caldwell,  8  Mich.,  463;  Rhea  v.  Jordan,  28  Graft.,  678;  Lester  v. 
Lester,  id.,  737;  Miranville  v.  Silverthorn,  1  Grant  (Pa.),  410;  Palmer  v.  Rich- 
ardson, S  Strobh.'s  Ecj.,  16. 

Poissession  must  be  under  the  parol  contract  sought  to  be  enfoi'ced  and  none  other.'] 
In  order  that  a  parol  contract  may  be  taken  out  of  the  operation  of  the  statute 
of  frauds,  where  possession  has  been  given,  the  posscs.-^ioJi  must  have  been  sur- 
rendered under  the  very  contract  and  none  other.  A  U  -j^vA  in  possession,  pur- 
chasing, would  not  come  within  the  rule,  he  would  La\.  entered  under  another 
agreement.  Danfoith  v.  Laney,  28  Ala.,  274:  Tate  v.  Jcik.s,  16  Fla.,  216^ 
Charpiot  v.  Liugerson,  25  ]\Io.,  63;  Cole  v.  Potts,  10  N.  J.  iJq.,  67;  Litton  v. 
Shipp,  65  Mo.,  293;  Knoll  v.  Harvey,  19  Wis.,  99;  Davis  v.  Moore,  9  Rich.,. 
215;  Mohana  v.  Blunt,  20  la.,  142;  Rosenthall  v.  Freeburgher,  26  Md.,  75. 


THE   RESCISSION   OF   THE   CONTRACT.  499 

original  contract  by  tlie  consent  of  the  partners,  and  di- 
rected tlie  deed  to  be  settled  by  the  master  having  regard 
to  such  variations.  (?/) 

§  1016.  (3)  Where  the  original  contract  is  by  law  re- 
quired to  be  in  writing,  the  new  one  must  be  in  writing  also, 
if  the  plaintiff  insists  on  it  as  jjart  of  his  case  ;  so  that,  for 
instance,  where  the  relation  of  landlord  and  tenant  is  con- 
stituted by  writing,  a  contract  for  an  abatement  of  rent  set 
up  by  the  plaintiff  must  be  in  writing  also.(£'V  From  the 
principles  of  the  court,  liowever,  in  regard  to  part  perform- 
ance, an  exception  naturally  arises,  as  the  new  contract  may 
in  this,  as  in  any  other  case,  be  by  parol,  if  supported  by 
acts  of  part  performance.'  Thus,  for  example,  where  W. 
leased  to  N.  a  house  for  eleven  years,  and  was  to  allow  £20 
for  repairs,  and  this  contract  was  signed  and  sealed  by  the 
parties,  and  N.,  finding  that  the  repairs  of  the  house  would 
cost  more  than  £20,  laid  out  a  further  sum,  in  consequence 
of  W.'s  having  i^romised  to  enlarge  the  term,  but  without 
mentioning  for  what  term  :  Jekyll,  M.  R.,  carried  the  parol 
contract  into  effect,  on  the  ground  that  it  was  a  new  con- 
tract, and  that  the  laying  out  of  money  was  a  part  perform- 
ance on  the  one  part,  which  made  it  needful  to  execute  the 
parol  contract  on  the  other,  (a) 

§  1017.  But  where  the  new  contract  is  relied  on  only  as 
an  extinguishment  of  the  old  one,  the  mere  fact  that  it  is 
not  in  writing,  and  so  could  not  be  put  in  suit,  seems  to  be 
no  ground  for  denying  its  effect  in  rescinding  the  original 
contract.  The  statute  of  frauds  does  not  make  the  parol 
contract  void,  but  merely  prevents  an  action  upon  it ;  and . 
it  does  not  seem  to  be  necessary  to  the  extinction  of  one 
contract  by  another  that  the  second  contract  could  be 
actively  enforced.     The  point  has  never,  it  is  believed,  been 

(y)  England  v.  Curling,  8  Beav.,  129.  (a)  5  Vin.  Abr.,  522,  pi.  38. 

(»)  O'Connor  v.  Spaight,  1  Sch.  &  Lef.,305. 

'  So  where  the  subject  matter  of  an  agreement  was  the  sale  of  land,  a  parol 
promise  made  by  the  vendee,  that  he  would  take  no  advantage  of  a  delay  of. 
perfoi-mance  beyond  the  time  fixed,  was  not  deemed  a  waiver  of  the  party's 
right  to  recover  a  stipulated  sum  as  liquidated  damages  for  not  performing  on 
the  day,  such  promise  being  void  by  the  statute  of  frauds,  and,  therefore,  in- 
capable of  affecting  the  previous  contract.  Hasbrouck  v.  Tappen,  15  Johns., 
200. 

-  This  doctrine  is  equally  well  estalilished  in  this  country.  "Walker  v.  Wha- 
ley,  2  Humph.,  119;  England  v.  Jackson,  3  id.,  584;  McCorkle  v.  Brown,  9 
Sm.  &  Marsh.,  167. 


500        FRY  ON  SPECIFIC  PEllFOllMAXCE  OF  CONTRACTS. 

matter  of  decision.  (&;)  But  in  point  of  principle  it  seems  to 
stand  on  the  same  footing  as  a  good  simple  agreement  to 
rescind. 

3.  An  agreement  with  a  third  'person. 

§  1018.  An  agreement  between  the  original  parties  and  a 
third  person,  b}^  which  the  third  person  takes  the  place  of 
one  of  the  original  contractors,  creates  a  new  contract  on 
the  old  terms  between  the  new  parties  and  rescinds  the 
original  contract. 

§  1019.  So  where  M.  agreed  Avitli  a  company  to  take 
certain  shares,  and  no  payment  was  made  by  M.,  so  that 
according  to  the  contention  of  the  liquidator  of  the  company 
he  had  no  right  to  the  shares  :  and  M.  then  transferred  the 
shares  to  G.,  and  G.  was  registered :  it  was  held  that,  assum- 
ing the  contention  to  be  correct,  the  contract  with  M.  was 
restricting  in  fieri,,  /ind  the  transfer  to  which  the  company 
was  a  party  constituted  a  new  contract  to  take  the  same 
shares  between  the  company  and  G.,  and  that  the  old  con- 
tract with  M.  was  discharged  by  the  new  contract  with  G.(c) 

§  1020.  So  again  where  A.  sold  shares  to  B.,  and  B.  sold 
them  to  C,  and  A.  executed  a  deed  of  transfer  to  C,  which 
C.  refused  to  register ;  A.  brought  a  bill  for  specific  per- 
■  formance  against  B.,  but  it  was  held  that  A.,  having  assigned 
the  shares  to  C,  had  determined  the  privity  of  contract 
with  B.,  and  that  he  could  not  make  a  title  to  the  shares. 
The  main  question  in  the  case  was  whether  C.  was  merely 
the  nominee  of  B.,  or-  there  was  a  substantive  contract 
between  A.  and  C. :  the  latter  was  the  view  taken  under  the 
circumstances.  (^Z) 

§  1031.  In  the  chapter  on  contracts  for  the  sale  of 
shares,  (e)  it  will  be  seen  that  questions  of  novation  by  the 
introduction  of  a  third  person  arises  upon  sales  on  the  stock 
exchange.  The  reader  is  referred  to  that  chapter  for  their 
bearing  on  the  question  of  novation. 

§  1033.  There  are  two  other  classes  of  contracts  in 
respect  of  which  the  question  of  novation  has  frequently 

(ft)  See  Vinnius,  Common,  in  Inst.  lib.  lii.        {d)  Shaw  v.  Fisher,  5  De  G.  M.  &  G.,  590? 

tit.  30.    As  to  a  parol  contract  at  common  Holden  v.  Hayn,  1  Mer.,  47;  Hall  v.  Laver,  3 

law  to  vary  (in  effect)  the  terms  of  a  deed,  see  Y.  &  C.    Ex.,  191;    Stanley  v.  Chester  and 

Nash  V.  Armstrong,  10  C.  B.  N.  .S.,  259.  Birkenhead  Hallway  Co.,  9  Sim.,  264;  S.  C.  3 

(c)  Morton's  case,  L.  R.  16  Eq.,  104.    Of.  My.  &  Or,  773;  supra,  §  151. 
Ex  parte  Beresford,  3  Mac.  &  G.,  197;  Moore       (e)  Infra,  Part  VI.,  chap.  1,  §  1472,  et  seq. 
T.  Marrable,  L.  R.  1  Ch.,  217. 


THE   EESCISSION   OF   THE   CONTRACT.  501 

arisen — the  first  relating  to  continued  dealings  between  A. 
and  one  set  of  partners  and  A.  and  another  set  of  partners 
successors  in  trade  to  the  former ;  and  the  second  relating 
to  the  dealings  of  a  person  insured  in  one  company  and 
continuing  to  make  X->ayinents  to  another  with  which  the 
first  had  amalgamated,  or  to  which  it  had  assigned  its  busi- 
ness. The  full  discussion  of  these  classes  of  cases  would  be 
too  remote  from  the  subject  of  these  pages  to  be  here 
proper. 

4.  Exercise  of  a  power   to  rescind  resermd  hy  the 

contract. 

§  loss.  Generally  speaking,  one  party  to  a  contract  can- 
not rescind  it,  except  by  consent  of  the  other  party,  but  this 
general  principle  is  liable  to  exceptions.  The  first  that  falls 
to  be  noticed  is  where  the  contract  reserves  to  one  or  both 
of  the  contracting  parties  a  power  in  certain  specified  cir- 
cumstances to  rescind  the  contract.  (/)  Such  stipulations 
are  frequent  in  contracts  for  the  sale  of  land.  It  will  be 
desirable  briefly  to  consider  these  stipulations. 

§  1024.  When  a  contract  stipulates  that  on  the  happen- 
ing of  a  certain  event  it  shall  be  void,  the  construction  put 
upon  it  by  the  courts  generally  is,  that  it  may  on  this  event 
be  rescinded  by  the  party  injured  by  such  event.  Thus  a 
proviso  that  in  case  the  vend.or  of  an  estate  cannot  deduce 
a  good  title,  or  the  purchaser  shall  not  pay  the  money  at 
the  appointed  day.  the  contract  shall  be  void,  has  been  held 
to  mean  that  in  the  former  case,  the  purchaser,  and  in  the 
latter  the  vendor,  may  avoid  the  contract,  and  not  that  the 
contract  is  utterly  void,  {g) 

§  1025.  A  right  to  rescind  a  contract  on  the  non-perform- 
ance of  an  act,  wdiich  act  it  is  the  duty  of  the  party  invested 
with  the  riglit  of  rescission  to  perform  if  he  can,  will  not 
give  such  party  a  right  to  refuse  to  perform  his  part  of  the 
contract,  but  will  be  held  to  apply  where  the  act  cannot  be 
done  :  thus  where  there  is  a  condition  that,  if  any  objection 
shall  not  be  removed  within  a  limited  time,  the  vendor  shall 
be  at  liberty  to  annul  the  contract,  the  vendor  is  not  entitled 
to  neglect  to  remove  any  objection,  and  then,  on  the  strength 

(/)  E  g  Mareden  v.  Sambell,28  W.B,952.    also,  Doe  d.  Nash  v.  Birch,  1  M.  &  W.,  402; 
(g)  Roberts  v.  VVyatt,  2  Taunt.,  268.    fc>ee,    Hyde  v.  Watts,  12  M.  &  W.,  254. 


502        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

of  his  own  neglect,  to  annul  the  contract, (/^)  but  the  condi- 
tion will  entitle  him  to  rescind  the  contract  if,  having  done 
all  that  is  incumbent  on  him,  he  fails  to  show  a  good  title,  (i) 
But  whei'e  the  right  to  rescind  is  limited  to  arise  in  case  of 
his  being  unable  or  unwilling  to  do  the  act,  the  case  is  of 
course  diiferent,  and  he  is  generally  exemx)ted  at  his  election 
from  any  obligation  to  do  the  act.(y) 

§  10^6.  Instances  of  the  exercise  of  this  right  to  rescind 
may  be  found  in  the  following  cases.  {7c)  The  contract  stipu- 
lated that  if  from  any  cause  whatever  the  purchase  was  not 
completed  by  the  time  specified,  the  vendor  was  to  be  at 
liberty  to  annul  the  contract.  At  the  day  appointed  the 
parties  met,  and  the  vendor  oifered  and  the  purchaser 
accepted  the  vendor's  undertaking  to  satisfy  certain  unsatis- 
fied requisitions.  Nevertheless  the  purchaser  refused  to  pay 
the  purchase-money,  whereupon  the  vendor  said  that  he 
would  annul  the  contract  if  the  money  was  not  paid :  the 
purchaser  refused  to  j)ay  till  the  requisitions  were  satisfied : 
the  vendor  on  the  same  day  annulled  the  contract  by  notice, 
and  successfully  maintained  a  bill  for  an  injunction  to 
restrain  any  proceedings  at  law  on  the  contract.  (Z) 

§  1027.  In  another  case,  one  condition  i)rovided  that  if 
any  objection  to  title  were  persisted  in,  the  vendor  might 
rescind  the  contract :  another  provided  that  if  any  mistake 
should  appear  in  the  description  of  the  property  or  of 
the  vendor's  interest  therein,  compensation  should  be 
given.  A  question  arose  as  to  the  rights  of  the  lord  of 
the  manor  to  certain  mines  or  minerals,  the  purchaser 
claimed  compensation  and  the  vendor  rescinded :  the  pur- 
chaser brought  his  bill  for  performance  with  compensation  : 
the  vendor  relied  on  his  rescission.  The  court  held  that  the 
question  in  dispute  was  one  of  title,  and  that  the  vendor 
was  therefore  entitled  to  rescind,  (m) 

§  1028.  A  condition  enabling  the  vendor  to  annul  the 
sale  if  the  purchaser  should  make  any  objection  or  requisi- 
tion which  the  vendor  should  be  unwilling  on  the  ground  of 
expense   or  otherwise  to   comply  with,   does  not  enable  a 

(A)  Greaves  v.  Wilson,  25  Beav.,  290;  cf.  Re  ever  Powell  v.  Powell,  L.  R.  19  Eq.  422;  Re 

Jackson  &  Oakshott,  14  Ch.  D.,  851.  Jackson  &  OakshoU.  14  Ch.  D.,  851. 

(i)  Page  V.  Adams,  4  Beav.,  269.  (k)  See  too  infra,  §§  11G4.  1165. 

U)  Tanner  V.  Smith,  10  Sim.,  410;  Morley  (I)  Hmlson  v.  Temple.  29  Beav.,  536.    DIs- 

V.  Cook,  2  Ila.,  106;  Duddell  v.  Simpson,  L,.  tlnfculsh  Turpin  v.  Chambers,  ib.,  104. 

R.  2  Ch.,  Wi,  varying  S.  C.  L,  R.  1  Eq.,  578;  (m)  Maweon  v.  Fletcher,  L.  R.  10  Eq.,  213; 

Gray  v.  Fowler,  L.  R.  8  Ex  ,  249.    See  how-  6  Ch  ,  91. 


THE   RESCISSION   OF   THE   COISTTRACT.  503 

vendor  who  shows  no  title  whatever  to  rescind.  Such  a 
vendor  was  consequently  made  to  pay  damages  for  his  non- 
performance, ill) 

§  1029.  Where  a  right  to  rescind  a  contract  must  be 
•exercised  within  a  reasonable  time  after  it  arises,  or  at  any 
time  before  it  is  waived  or  abandoned,  may  be  open  to 
question,  (o)'  But  it  is  conceived  to  be  clear  that  a  party 
who,  having  a  right  to  rescind,  either  himself  does  some 
act  under  the  contract  which  involves  or  im]olies  the  con- 
tinued existence  of  the  contract,  or  suffers  the  other  party 
to  do  such  act  without  asserting  the  right  to  rescind,  has 
thereby  lost  that  right. 

§  1030.  Thus  where  conditions  of  sale  stipulated  that  if 
there  was  any  objection  which  the  vendor  should  be  unable 
or  unwilling  to  remove  he  might  rescind  the  contract,  and 
the  purchaser  should  be  entitled  to  his  deposit  without 
interest  or  costs,  it  has  been  held  that  such  a  condition  is 
confined  to  the  objections  first  taken  after  the  abstract  is 
delivered,  and  that  a  treaty  between  the  parties  for  the 
completion  of  the  purchase  is  a  waiver  of  the  condition,  (7:») 
It  being,  of  course,  evidence  of  the  vendor's  willingness  to 
remove  the  objection.'  Such  a  condition  will  apply,  if  it  be 
acted  on  by  the  vendor  the  moment  the  defect  is  kno^Ti  to 
him,  but  will  not  allow  him  to  spend  time  in  fruitless  efforts 
to  remove  the  objection,  and  then  to  rescind  the  contract  on 
the  terms  of  the  condition.  (^)  And  so  where  money  is  pay- 
able by  instalment,  and  there  is  a  power  to  rescind  on 
breach  of  the  contract,  the  receipt  of  money  due  on  a  subse- 
quent instalment  is  a  waiver  of  the  right  to  rescind  for 

(n)  Bowman  v.  Hyland,  8  Oh.  D.,  588,  and  952;  Ker  v.  Crowe,  L.  R.  7  C.  L,.,  181;  and 

see  Re  Jackson  &  Oakshott,  14  Ch.  D.,  Sol,  supra,  §  709. 

cited  infra.  Part  V. ,  chap   1,  §  1165.  (p)  Tanner  v.  Smitli,  10  Sim.,  410;  Morley 

(0)  See  Morrison  v.  Universal  Marine  In-  v.  Cook,   2    Ha.,   1C6.    See,    also,    Cutis  v. 

surance  Co.,  I..  R.  8  Ev.,  40,  197,  particularly  Thodey,  13  Sim  ,  206. 

^05;  and  see  Marsden  v.  Sambell,  28  W.  K.,  (q)  Md  ulioch  v.  Gregory,  1  K.  &  J,  236; 

Lane  v.  Debenham,  17  Jur.,  1005. 


*  The  same  doctrine  obtains  at  law.  Canfield  v.  Wescott,  5  Cow.,  270;  Man- 
cius  V.  Sergeant,  id.,  371;  Church  v.  Ayres,  id.,  272.  But  when  a  contract 
shall  be  thus  rescinded,  if  there  be  a  mode  of  rescission  provided,  it  must  be 
rescinded  in  that  way.     McKay  v.  Carrington,  1  McLean,  50. 

*  And  an  application  for  a  rescission  must  likewise  be  made  as  soon  as  the 
cause  of  rescission  is  discovered.  Ayres  v.  Mitchell,  3  S.  &  M.,  683.  In  aU 
cases  there  must  be  promptness  on  the  part  of  the  one  seeking  the  rescission; 
he  must  move  in  the  matter  on  the  first  knowledge  of  the  breach ;  and  if,  after 
knowledge  of  the  violation  of  the  contract,  he  negotiates  with  the  other  party, 
he  waives  all  right  of  rescission.  Lawrence  v.  Dale,  3  John.'s  Ch.,  23;  McKay 
V.  Carrington,  1  McLean,  50. 


504        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

default  in  respect  of  a  previous  one.(r)  So  the  receipt  of 
royalty  at  a  reduced  rate  is  a  bar  to  the  exercise  of  a  right 
of  rescission  reserved  on  the  non-payment  of  royalty  at  a 
higher  rate.  (5) 

§  lOSl.  Where  the  contract  stipulates  for  a  right  of 
rescission  in  respect  of  separate  breaches,  the  waiver  of  one 
will  not  waive  another  :  so  that  where  there  was  a  contract 
for  the  payment  of  money  by  instalments,  and  that  time 
should  be  of  the  essence,  and  further,  a  power  to  rescind  on 
breach  of  the  contract,  it  was  held  that  each  default  of  pay- 
ment of  an  instalment  at  the  stipulated  time  was  a  fresh 
breach  of  the  contract,  on  which  the  right  to  rescind  arose. (^) 

§  103:3.  Where  there  are  conditions  for  compensation 
and  for  rescission('?^)  the  courts  will,  for  obvious  reasons, 
generally  construe  them  so  as  to  confine  the  right  to  rescind 
to  cases  not  within  the  condition  for  compensation.  Thus, 
in  a  case  in  which  j^iarticulars  of  sale  by  error,  but  without 
fraud  or  gross  negligence  on  the  x)art  of  the  vendor,  described 
part  of  the  property  as  a  customary  leasehold  holden  of  a 
manor  renewable  every  twenty-one  years  on  payment  of  a 
customary  fine,  and  the  property  was  in  fact  holden  only 
for  a  term  of  twenty-one  years  with  no  customary  right  of 
renewal ;  the  fourth  condition  of  sale,  after  providing  for 
the  delivery  of  the  abstract  and  of  objections  to  the  title, 
stipulated  that  the  vendor  should  be  at  liberty  at  any  time 
after  the  delivery  of  such  objections  to  vacate  the  sale,  and 
that  the  deposit  was  thereupon  returned  without  interest, 
costs,  or  other  compensation  ;  the  fifth  condition  of  sale 
provided  that  the  purchaser  should  accept  the  existing  lease 
and  the  assignment  to  the  vendor  as  a  sufficient  title  to  this 
property  ;  and  the  sixth  condition  stipulated  that  if  through 
any  mistake  the  estate  should  be  improperly  described  or 
any  error  or  mis-statement  be  inserted  in  the  particular, 
the  same  should  not  vitiate  the  sale,  but  that  conijpensation 
should  be  made  by  either  party,  as  the  case  might  be.  The 
purchaser  tiled  a  bill  for  specific  performance  with  com 
pensation,  contending  that  the  error  was  within  the  sixth 
condition  :  the  vendor  resisted  performance  and  sought  to 
vacate  the  contract,  on  the  ground  that  it  was  within  the 

(r)  Hunter  v.  Daniel,  4  Ha.,  420.  (t)  Hunter  v.  Daniel,  4  Ha. ,  420. 

(»)  Warwick  v.  Hooppr,  .3  Mac.  &  G.,  60.        {u    Cf.  infra,  §§  1258,  1259. 
See,  also,  Langridge  v.  Payne,  2  J.  &  H.,  423. 


THE   KESCISSION    OF   THE    COXTKACT.  505 

fourth  condition.  Lord  Hatlieiiy  (then  V.  C),  referrino-  to 
the  fifth  condition  as  exi^laining  the  nse  of  the  word  title  in 
the  condition,  held  that  this  was  rather  a  mis-statement  of 
the  subject-matter  of  the  sale  than  of  the  vendor' s  title  to  it, 
and  therefore  within  the  sixth  and  not  within  the  fourth 
condition  of  sale  ;  and  he  accordingly  enforced  specific  per- 
formance with  compensation  -.{v)  and  Lord  Romilly,  M.  R., 
put  a  like  construction  on  similar  conditions  in  a  similar 
case,  (w) 

§  1033.  It  remains  to  remark  that  the  plaintiff,  bringing 
an  action  for  the  specific  performance  of  a  contract,  may 
claim  in  the  alternative  that,  if  the  contract  cannot  be 
enforced,  it  may  be  rescinded  and  delivered  up  to  be  can- 
celled, (re)  provided  that  the  alternative  relief  is  based  on  the 
same  state  of  facts,  though  with  different  conclusion  as  to 
law.  (7/)  When  the  action  is  brought  by  the  vendor,  and 
the  purchaser  has  been  in  possession,  this  alternative  claim 
may  embrace  an  account  of  the  rents  and  profits.  (2)  But, 
for  the  reason  already  stated,  an  action  to  set  aside  a  trans- 
action for  fraud  or,  in  the  alternative,  for  specific  per- 
formance of  a  compromise  cannot  be  sustained,  (a) 

5.  Rescission  on  the  ground  of  fraud  or  mistake. 

§  1034.  Either  party  to  a  contract  who  has  been  led  into 
it  by  fraud  may  rescind  the  contract: (6)  and  either  party 
to  a  contract  who  by  fraud  of  the  other  part}-  has  been  pre- 
vented from  obtaining  the  full  benefit  of  it  may  rescind  the 
contract. (c)  This  right  is  discussed  in  the  chapter  on 
fraud.  ((^Z) 

Mistake  is  also  under  some  circumstances  a  ground  for 
rescission,  (e) 

6.    Wliere  one  party  has  refused  to  perform  or  unreas- 
onably delayed  performance. 
§  1035.  Where  one  party  to  a  contract  absolutely  refuses 

(f)  Painter  v.  New  by,  U  Ha.,  26;  Xelthorpe  (z)  Williams  v.  Shaw,  3  Russ.,  78  n. 

V.  Holgate.l  Coll.,  203.    Pee,  also,  Mawson  v.  (a)  Cawley  v.  Poole,  1  H.  &  M.,  50.    Dis^ 

Fletcher,  L.  R.  Id  Eq.,  2]2;  6  Ch..  91.  tinjtuish  Bagot  v.  Easton.  7  Ch.  D.,  1. 

(M))  Hoy  V.  Smithies,  22  Beav.,  510.  (b)  Onions  v.  Cohen,  2  H.  &  M.,  354,  361. 

(a;)  Moseley  v.Virgln,3Ves.,  184;  Costigan  (O  Panama  &c.  Telegraph  Co.  v.   lurjia- 

V.  Hastier,  2  Sch.  &  Lef.,  160,  166;  Stapylton  rubber,  etc  ,  Co.,  L.  R.  10  Ch.,  515. 

V.   Scott.  13  Ves.,  425;  Clarke  v.  Fauxe.  3  (d)  Supra.  Pait    III.,  chap,  xiv.,  §  673  et 

Rns.-.    32(1 ;  King  v.  King,  1  My.  &  K.,  442;  eeq. ;  and  ci.  Cargill  v   Bower,  10  Ch.  D..  502, 

Douglass  V.  London  and  >»orth- Western  Rail-  and    per   Lord    Blackburn  in  Brownlie  v. 

way   Co.,  3  K.   &  J.,  173;  Forster   v.  Great  Can  pbill,  5  App.  C.  949 

Eastern  Railway  Co.,  W.  X.  1868,  122.  te)  See  supra,   §    750;    and    cf.    Cullen    v. 

{y)  Rawliugs  v.  Lambert,  1  J.  &  H.,  458,  O'Meara,  I.  R.  1  C.  L.,640,  4  C.  L.,  53/  (mis- 

and  see  Ord.  XIX.  r.  8.  description). 


506        FRY  ox  SPECIFIC  PEUFOllMANCE  OF  CONTRACTS. 

to  perform  his  part  of  the  contract,  either  before  or  after 
the  hour  for  perfoniiaiice  lias  arriYed,(/)  the  other  party 
may  accept  that  refusal  and  thereupon  rescind  the  contract. 
So  that  wlKn-e  a  man  contracted  to  buy  straw  to  be  deliv- 
ered by  instalments,  and  to  pay  on  delivery,  and  after  a 
time  refused  to  pay  for  the  last  load  delivered  and  insisted 
on  always  keeping  one  payment  in  arrear,  the  other  party 
was  held  entitled  to  rescind  the  contract.  (^)  But  to  justify 
rescission  for  this  reason,  the  refusal  to  perform  must  not 
be  mere  non-performance  or  neglect  in  performance  :  "  there 
miist  have  been  something  equivalent  to  saying  '  I  rescind 
the  contract,' — a  total  refusal  to  perform  it,  or  something 
equivalent  to  that  which  would  enable  the  plaintiff  on  his 
side  to  say,  '  If  you  rescind  the  contract  on  your  part,  I 
will  rescind  it  on  mine.'  "(7^)  In  an  earlier  case  in  the 
Queen's  Bench,  these  cases  were  exj^lained  by  Coleridge, 
J.,(/)  as  depending  upon  the  concurrence  of  the  parties  in 
the  rescission,  so  that  they  may  reallj^  be  considered  as  cases 
in  which  an  agreement  to  rescind  is  proved  by  the  acts  of 
the  parties.,/) 

§  1036.  Where,  on  becoming  insolvent,  a  contracting 
party  practically  gives  notice  to  his  creditors  and  those  who 
have  contracted  with  him  that  he  does  not  mean  to  pay  any 
of  his  debts  or  j)erform  any  of  his  contracts,  there  is  a 
refusal  which  may  be  accepted  by  the  other  side,  and  that 
by  conduct  as  well  as  by  express  rescission. (^') 

§  1037.  The  right  to  rescind  which  arises  from  unreason- 
able delay  in  performance  will  be  considered  in  the  next 
chapter.  (/) 

7.  W7iere  one  party  leas  made  performance  impossible.. 
§  1038.  It  is  a  clear  principle  of  law  that  if  by  any  act  of 
one  of  the  parties  the  performance  of  a  contract  be  rendered 
impossible,  the  other  party  may,  at  his  election,  rescind  the 
contract,  (m)  so  that  where  A.  contracted  with  B.  to  supply 
B.  with  a  chariot  for  five  years,  which  A.  was  to  repair,  and 

(/■)  Danube  and  Black  Sea  Railwav.etc, Co.  (ft)  Ex  parte  Chalmers.  L.  R.  8  Ch  ,  289; 

V.  Xenos.ll  C.  B  X.  8  .ISi;  13  C  H.  N.S.,825.  Morg;ni  v.  Bain,  L.  R.  10  C.  P  ,  15;  Cf.  Scrim- 

{(1)  Withers  V.  Reynohls,  '2  B.  &  Ad.,  882  geour's  claim,  L.  R..  8  Ch.,  921. 

(/i)  Ehrcnsperger  V.   Anderson,  3  Ex.,  148,  (/)  See  too  Micholls  v.   Corbett,  34  Beav., 

per  Parke  B  ,  158;  Freeth  v.  Burr,  L.  R.  9  C.  376. 

P  .  208  im)  Panama,  etc..  Telegraph  Co.  v.  Indla- 

(t)  Franklin  v.  Miller,  4  A.  &  E.,  .599.  rubber,  etc.,  Co.,  L.  R.  10  Ch.  515,  532. 

(j)  See  further  2  Smith,  L.  C  35  et  seq. 
(Sth  ed.) 


THE    RESCISSION    OF   THE   CONTRACT.  507 

before  the  five  years  had  expired  A.  made  over  the  chariot 
to  his  successor  in  trade  and  thereby  disabled  himself  from 
performing  the  unperformed  part  of  the  contract,  B.  was 
held  at  liberty  to  rescind  it.(7i)  Similarly  it  seems  queer 
that  a  contract  to  convey  an  estate  may  be  rescinded  if  the 
vendor  convey  the  estate  to  a  third  person  :{o)  that  a  con- 
tract to  pay  in  goods  may  be  rescinded  if  the  payer  part 
with  the  goods  :(^j)  that  a  contract  to  write  an  essay  for  a 
particular  series  may  be  rescinded  if  the  publisher  finally 
abandon  the  series  :{q)  that  a  contract  to  accept  and  pay  for 
a  telegraph  cable  on  the  certificate  of  an  engineer  may  be 
rescinded  if  the  party  to  deliver  the  cable  bribe  the  en- 
gineer, (r) 

§  1039.  The  impossibility  must,  it  seems,  arise  in  respect 
of  some  substantial  or  essential  part  of  the  contract  ■,(s) 
though  it  is  not  perhaps  clear  on  principle  why  a  contract- 
ing y)arty  who  disables  himself  from  performing  modo  et 
forma  should  be  at  liberty  to  allege  that  the  incapacity 
which  he  has  produced  is  in  a  non-essential  particular. 

§  1040.  But  even  though  the  particular  in  respect  of 
which  the  impossibility  arises  may  not  be  of  the  essence  of 
the  contract,  yet  if  it  be  brought  about  by  the  fraudulent 
misconduct  of  the  defendant,  the  plaintiff's  right  to  rescind 
is  clear 'in  equity.  Thus  where  Company  A.  contracted 
with  Company  B.  to  lay  a  telegraph  cable  for  Company  B., 
and  then  bribed  the  engineer  for  whose  services  in  certify- 
ing as  to  the  work  the  contract  provided,  Mellish,  L.  J., 
held  that  even  if  the  certificate  of  the  engineer  could  not  be 
considered  so  much  of  the  essence  of  the  contract  that  the 
plaintiff  would  at  common  law  have  been  entitled  to  rescind, 
yet  that  the  fraudulent  misconduct  of  the  defendant  com- 
pany having  made  it  impossible  that  the  plaintiff  company 
could  have  the  full  benefit  of  the  contract,  they  were  at 
liberty  to  rescind.  (?^)' 

(n)  Robson  v.  Drummonil,  2  B.  &  Ad.,  303.  (r)  Panama.etc.TelegraphCo.v.  India-rub- 

(o)  Palmer  V.  Temple,  9  A.  &  E. ,50b;  Love-  ber,  etc.,  Co.  b.  R.  10  Ch..  51o. 

lockv    Franklyn,  8Q.  B.,  371:Fordv.  Tllley,  (s)  Panama,  etc.,  Telegraph  Co.   v.  India- 

6B   &'0    325  rubber,  etc.,  Co.,  L.  R.  10  Ch.,  532. 

(p)  Keyes  V.  Harwood,  2  C.  B.,  905.  (t)  Panama,  etc..  Telegraph  Co.  v.   India- 

iq)  Planche  v.  Colburn.  8  Blng.,  14.  rubber,  etc.,  Co  ,  L.  R.  10  (Jh.,  515. 


1  Tender. '\  A  party  agreed  to  pay  a  part  of  the  purchase  price  by  executing 
and  delivering  his  bond,  with  a  mortgage  upon  the  hind,  and  the  balance  in 
cash  upon  delivery  of  the  deed  upon  a  day  specified.  Defendant  agreed  to 
■deliver  the  deed  when  so  paid.     The  parties  met ;  defendant  produced  a  deed 


508        FRY  ox  SPECIFIC  PFKFORMANCE  OF  CONTRACTS. 

bearins?  date  the  day  the  contract  was  executed;  plaintifE  produced  and  handed 
to  defendant  the  Ixmd  and  mortgage,  and  had  a  certified  check  for  the  cash  to 
be  paid;  neither  party  made  a  tender.  Defendant  claimed  that  he  was  entitled 
to  interest  on  the  whole  purchase  money  from  the  date  of  the  contract ;  the 
matter  was  discussed  and  defendant  left  the  room  for  consultation.  Upon  liis 
return  he  offered  to  carry  out  the  contract  according  to  its  terms.  In  an  action 
to  compei  specific  performance,  held,  that  a  formal  tender  was  not  necessary 
in  order  to  maintain  the  action.  The  defendant  having  taken  an  untenable 
ground,  if  he  changed  his  views,  or  receded  from  his  position,  he  was  bound  to 
notifv  plaintiff,  and  his  refusal  to  pass  the  title,  except  upon  payment  of  the 
interest  claimed,  was  a  good  excuse  for  not  making  a  tender.  Selleck  v.  Tall- 
man,  87  N.  Y.,  lOG. 

The  possession  must  be  exclusive  and  absolute.']  The  possession,  in  order  to- 
satisfy  the  statute,  must  be  exclusive  and  absolute:  must  not  be  as  a  tenant  in 
common  or  as  a  joint  tenant;  it  must  be  actual,  open  and  notorious.  A  merely 
technical  possession  will  not  answer.  Elliott  v.  Thomas,  ;3  M.  &  W.,  170;. 
Mills  V.  Hunt,  17  Wend.,  838:  Smith  v.  Underdunk,  1  Saudf.'s  Ch.,  579;  .Jones 
V.  Pease,  21  Wis.,  644;  Briggs  v.  ^hisking,  25  Eng.  L.  and  Eq  ,  257;  Bout- 
well  V.  O'Keefe,  32  Barb.,  434;  McKnight  v.  Dunlop,  5  N.  Y.,  537. 

Parol  partition  between  several  grantees.']  Where  there  are  several  grantees  of 
real  property,  a  parol  partition  between  themselves,  if  followed  by  actual  pos- 
sessession,  is  sufficient  to  take  the  case  out  of  the  operation  of  the  statute. 
Corbin  v.  Jackson,  14  Wend.,  619;  Piatt  v.  Hubbell,  5  Ohio,  243;  Williams  v. 
Pope.  Wright,  406:  Ebert  v.  Wood,  1  Bin  ,  216;  Cummins  v.  Nutt,  Wright, 
713;  Calhoun  v.  Hays,  8  Watts  &  Serg.,  127;  Wilday  v.  Bonney,  31  Miss.,  644. 
This  is  not  true,  vvhere  possession  is  not  taken.  Shoe  v.  Derrick,  2  Rich.,  627^ 
An  action  of  ejectment  was  pending,  and  the  parties  verbally  agreed  to  divide 
the  property,  each  holding  their  respective  shares  in  severalty;  all  entered  into- 
possession.  Held,  that  "there  is  no  substantial  differences  in  principle  between 
such  an  agreement  when  carried  out  by  taking  possession  in  severalty  under  it, 
and  a  parol  partition  of  land  between  parties  in  possession  and  claiming  title, 
accompanied  and  followed  by  possession  by  each  party  of  the  part  conceded 
to  him  "    Handy,  J.,  in  City  of  Natchez  v.  Vandernelde,  31  Miss  ,  706. 

JDivii<.ion  line,  acceptance  and  possession  under.]  A  disputed  boundary  line- 
may  be  settled  by  an  express  parol  agreement,  where  possession  is  immediately 
entered  upon ;  the  parties,  in  such  a  case,  cannot  afterwards,  set  up  the  statute 
of  frauds  as  a  defense.  Boyd  v.  Graves,  4  Wheat.,  513;  Jackson  v.  Corlear,  11 
Johns.,  123;  Jackson  v.  Dyeling,  2  Caines,  198;  Davis  v.  Townsend,  10  Barb., 
333;  Lindslev  v.  Springer,  4  Harring.  (Del.),  547;  Fuller  v.  County  Commr.,  15 
Pick.,  81;  Blair  v.  Smith,  16  Mo.,  273;  Kipp  v.  Norton,  12  Wend  ,  127;  Adams- 
V.  Bockwell,  16  id.,  285;  Yorborough  v.  Abernathy,  Meigs,  413. 

Exclxunge  of  real  property  by  parol  possession]  "If  the  evidence  shows  an 
unequivocal  and  complete  taking  possession  of  one  of  the  subjects  of  an  ex- 
change by  the  party  owning  the  other  subject,  it  strengthens  the  evidence  of 
possession  taken  by  the  opposite  parly  of  the  corresponding  subject.  Proof 
of  possession  that  might  seem  weak  and  inconclusive,  in  the  case  of  a  parol 
sale,  is  thus  made  convincing  in  the  case  of  an  exchange."  Agnew,  J.,  in 
Mossv.  Culver,  64  Pa.  St.,  4l4;  see,  also,  Johnson  v.  Johnson,  6  Watts,  370; 
Bennett  v.  Abrams,  41  Barb.,  619;  Cauldwell  v.  Carrington,  9  Pet.,  86;  Beebe 
V.  Dowd,  22  Barb.,  255;  Parrill  v.  McKinuey,  9  Graft.,  1 ;  Reynolds  v.  Hewett, 
27  Pa.  St.,  176.  In  Miles  v.  Miles,  8  Watts  &  Serg.,  135,  it  was  held,  that 
notwithstanding  each  party  did  not  take  immediate  possession  of  his  allowance, 
yet  a  parol  exchange  of  land  might  be  valid. 

Irnpi-ovements  to  real  property  upon  the  faith  that  it  will  be  p)resented.]  Where- 
there  has  been  an  actual  delivery  of  possession,  and  valuable  improvements 
made  of  which  the  donor  had  knowledge,  a  parol  promise  that  land  would  be 
deeded  to  another  will  be  specifically  enforced.  Freeman  v.  Freeman,  39  N.  Y. , 
34;  see,  also,  Haines  v.  Haines,  4  Md.'s  Ch.,  133;  S.  C,  6  Md.,  435. 

Improvements  made  on  land  of  child  under  parol  gift]  In  order  that  a  parol 
contract  for  the  gift  of  land  from  a  father  to  a  sou  can  be  sustained,  all  the 


THE   EESCISSION    OF   THE   CONTRACT.  509 

acts  necessary  to  its  validity  must  have  special  reference  to  it,  and  not  to  any- 
thina;  else;  tlie  terms  of  the'contract  must  be  clearly  settled.  The  fact  that  the 
father  has  called  the  land  his  son's  property,  is  not  alone  sufhcient.  Hugh  v. 
Walker,  12  Pa.  St.,  173:  Cox  v.  Cox,  2G  id.,  373;  Poorman  v.  Kilgore.  id  ,  305; 
King  V.'  Thompson,  9  Pet..  204;  Eckert,  v.  Mace,  3  Pear.  &  Watts,  3G4;  Shell- 
hammer  V.  Ashbaugh,  83  Pa.  St.,  24;  Sower  v.  Weaver,  84  id.,  2G2.  Where 
large  expenditures  have  been  made,  which  have  resulted  ia  the  permanent  im- 
provement of  the  estate,  in  consideration  of  his  parol  promise  to  couvej'  the 
same,  and  with  his  knowledge,  in  such  case  the  court  will  enforce  the  promise. 
Young  V.  Gleudenning,  (i  Watts,  509;  Willis  v.  Mathews,  46  Tex.,  478;  Lob- 
dell  V.  Lobdell,  3G  K  Y.,  327;  Moore  v.  Pierson,  6  Iowa,  279;  Golhiarth  v. 
Golhiarth,  5  Kan.,  402;  Bright  v.  Bright,  41  111.,  101;  Hardisty  v.  Richard- 
son, 44  Md.,  G17;  Lewis  v.  George,  33  Mich.,  253;  Atkinson  v.  Jackson,  8  Ind., 
31;  Savler  v.  Eckhart,  1  Bin.,  378;  Davidson  v.  David.son,  13  N.  J.  Eci.,  246; 
France  v.  France,  8  id..  650;  Laur  v.  Henry,  39  Ind.,  414;  see,  however,  For- 
ward V.  Annistead,  12  Ala.,  124. 


510        FRY  OX  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 


CHAPTER  XXV. 

OF   THE   LAPSE    OF   TIME, 

§  1041.  The  lapse  of  time  before  application  to  the  court 
for  its  interference  to  enforce  an  uncompleted  contract,  or 
the  fact  that  the  plain tiil  has  not  performed  his  part  of  the 
contract  at  the  time  speciiied,  may  furnish  grounds  of 
defense  to  an  action  for  specific  performance. 

5j  1042.  Before  the  judicature  acts,  the  plaintiff  in  a 
conjmon  law  court  had  to  show  that  all  things  on  his  part 
to  be  performed  had  l)een  performed  within  a  reasonable 
time,  or,  where  a  time  was  specified  in  the  contract,  within 
the  time  so  specified :  and  at  common  law  time  was  thus 
always  of  the  essence  of  the  contract.  («)  But  in  equity  the 
question  of  time  was  differently  regarded,  for  courts  of 
equity  discriminating  between  these  formal  terms  of  a  con- 
tract, a  breach  of  which  it  would  be  inequitable  in  either 
party  to  insist  on  as  a  bar  to  the  other's  rights,  and  those 
which  were  of  the  substance  and  essence  of  the  contract, (&) 
and  applying  to  contracts  the  principles  which  governed  the 
interference  of  those  courts  in  relation  to  mortgages, (c)  held 
tiniH  to  be  ^;rma  facie  non-essential,  and  accordingly 
granted  specific  performance  of  contracts  after  the  time  for 
their  performance  had  been  suffered  to  pass  by  the  party 
asking  for  the  intervention  of  the  court,  if  the  other  party 
had  not  shown  a  determination  not  to  proceed,  {dy   ' '  When '  * 

(a)  Berry  v.  Young,  2  Esq.,  640  n  ;  AVilcle  ib)  Parkin  v.  Thorold,  ]6Beav.,59. 

V.  Fort,  4  Taunt.  334;   Stowell  v.  Robinson,  3  (c)  See  per  Lord  Eldon  in  Seton  v.  Slade,  7 

IJing    X.   C,  9i8;   Alexander  v.  Godwin  1  Ves.,  273. 

Bing    N.   C.,671;  Vernon  v.  Stephens  2  P.  (d)  Pincke  v.  Curti8,4  Bro.  C.  C,  329;  Rad- 

Wms..  6G;  and  cf.  Xoljie  v.  Edwardes,  5  Ch.  cllffe  v.  Warrington,  12  Ves.,  326.    See  per 

D  ,  378.     Where  a  condition  as  to  time  is  a  Lord  Kede8<lale  in  Lennon  v.  Napper,  2  Sch. 

mutual  stipulation  and  not  a  condUion  pre-  &  Lef.,  684;  per  Lord  Romllly,  M.  R.,  and 

cedent,  the  lapse  of  time  is  of  course  no  bar  Lord  Cranworth  (when  V.  C.)  in  Parkin  v. 

to  an  action  on   the  contract.     Hall  v.  Caze-  Thorold,  16  Beav..  .59;  2  Sim  N.  S..  1;  Baker 

r.ove,  4  Eabt,  477;   iiavelock  v.   Geddes,  10  v.  Metropolit-in  Railway  Co.,  31  lieav.,  504 

East,  555;  Horneman  v.Tooke,  1  Camp.,  377;  (completion  within  a  reasonable  time). 
l.iu;:is  V  Godwin.  3  Blng.  N.  C    *37;  Lamp- 
rel'  V   Billericay  Union,  3  Ex.,  283. 

'  At  law,  where  goods  are  to  be  delivered  at  a  certain  time,  they  mu.st  all  be 
delivered  at  that  time.  Davenport  v.  Wheeler,  7  Cow.,  381.  And  it  mii.st  be 
impossibility,  not  difficidty,  that  will  excuse  a  party  from  the  performance 
of  his  agreement.    Huling  v.  Craig,  2  Addi.s. ,  342.    But  although  rigid  enforce- 


THE    LAPSE    OF   TIME.  511 

said  Leach,  V.  C,  "  a  court  of  equity  holds  that  time  is  not 
of  tlie  essence  of  a  contract,  it  proceeds  upon  the  principle 
that,  having  regard  to  the  nature  of  the  subject,  time  is 
immaterial  to  the  value,  and  is  urged  only  hy  way  of  pre- 
tence and  evasion."  (e) 

§  1043.  Now,  however,  stipulations  in  contracts  as  to 
time  or  otherwise,  which  would  not  before  the  date  of  the 
commencement  of  the  judicature  act,  1873,  have  been 
decreed  to  be  or  to  have  become  of  the  essence  of  such  con- 

(e;  In  Doloret  v.  Rothschild,  1  S.  «&  S.,  598. 

ment  is  the  feature  of  law,  j^et,  in  equity,  the  time  of  performance  may  be 
enlarged.  Runnels  v.  Jackson,  1  How.  (Miss.),  358;  see  Getchel  v.  Jewett,  4 
Greeul.,  350;  Rogers  v.  Saunders,  16  Me.,  \)Z.  The  covirt  will  s(;  modify  the 
agreement  as  to  do  justice  as  far  as  the  circumstances  will  permit  and  will 
refuse  specific  execution  unless  the  party  seeking  it  will  comply  with  such 
modification  as  justice  requires.  Mechanics'  Bank  v.  Lyiui,  1  Pet.,  376; 
Mitchell  V.  Nicholson,  6  Call,  308;  see,  also,  Garnett  v.  Macon,  2  Brock.,  185. 
And  the  time,  mentioned  in  a  contract  of  sale,  for  payment  of  the  purchase 
money,  is  not  generally  of  the  essence  of  the  contract;  and  the  purchaser  does 
not  forfeit  his  purchase  by  neglect  to  pay  at  the  day.  Wells  v.  Wells,  3  Ired.'s 
Ch.,  596;  Runnels  v.  Jackson,  1  How.  (Miss.),  358;  Attorney-General  v.  Pur- 
mont,  5  Paige,  620;  see  Hepburn  v.  Auld,  5  Cranch,  263;  Fletcher  v.  Wilson, 
1  S.  &  M.'s  Ch..  376;  Brashier  v.  Gratz,  6  Wheat.,  528.  But  time,  it  is  said,  is 
essential  in  a  parol  contract  for  the  sale  of  land,  in  respect  to  the  specific  per- 
formance of  it  by  a  court  of  equity.  Goodwin  v.  Lyon,  4  Port.,  297.  In  Ken- 
tucky, the  case  of  Smith  v.  Carney,  1  Litt.,  295,  expresses  an  essentially  different 
doctrine  from  that  which,  judgiiag  from  the  weight  of  authority,  is  generally 
received  as  law.  It  is  a  case  to  be  classed  with  the  older  English  decisions. 
It  was  there  held,  that,  it  being  a  settled  rule  that  equity  will  not  decree  specific 
execution  of  a  contract  where  the  law  will  not  give  damages,  relief  was  denied 
on  a  verbal  contract  for  the  sale  of  laud,  made  before  the  statute  of  frauds  went 
into  operation,  as  assumpsit  alone  could  be  maintained  at  law  for  a  l)reach  of 
the  contract,  and  was  barred  by  five  years'  delay,  and  more  than  that  time  had 
elapsed  between  the  accruing  of  the  cause  of  action  and  the  commencement  of 
the  suit  In  cases  where  the  jurisdiction  of  law  and  e(piity  is  concurrent,  lapse 
of  time  is  an  absolute  bar  to  a  suit  in  equity,  if  it  would  be  so  at  law.  Humbert 
V.  Rector  of  Trinity  Church,  7  Paige,  195.  In  a  valuable  note  to  Seatou  v. 
Blade,  7  Ves.,  273,  contained  in  White  and  Tudor's  Leading  Cases  in  Equity, 
the  principles  of  equity  in  respect  of  time  are  very  learnedly  exhibited.  "At 
law,"  it  is  there  said,  "an  agreement  for  the  sale  of  real  estate  confers  a  mere 
right  of  action  on  the  vendee.  In  equity  it  does  more,  it  vests  an  equitable 
estate,  attended  by  most,  if  not  all,  the  incidents  of  actual  ownership.  It 
necessarily  follows  that  while  a  default  in  the  literal  fulfillment  of  the  stipula- 
tions of  such  a  contract  will  deprive  the  party  by  whom  it  is  committed  of  all 
right  of  recovery  at  law  against  the  other,  it  will  not  have  that  effect  in  equity, 
unless  of  such  a  nature  as  to  render  it  inequitable  to  enforce  tlie  contract. 
Although,  therefore,  a  party  who  has  committed  a  default  of  a  nature  to  be  in- 
jurious, and  which  does  not  admit  of  compensation,  will  not  be  allowed  to 
enforce  the  contract,  even  in  equity;  yet  when  the  default  is  not  injurious,  or 
the  injury  which  it  produces  can  be  compensated,  equity  will  not  consider  it  a 
sufticient  reason  for  refusing  to  cany  the  contract  into  execution.  1  Dev.  & 
Bat.  Eq.,  237.  A  default  iu'poiut  of  time  generally  admits  of  compei\.<ation. 
Time  is  held,  therefore,  not  to  be  material  in  itself  in  equity,  although  it  may 
undoubtedly  be  so  in  its  consequences.  A  failure  to  conqily  with  th'-  terms  of 
a  contract,  on  the  day  fixed  lor  their  fuUillment,  will  not.  lhereft>i\',  neces- 
sarily preclude  the  right  to  fulfill  them  afterwards,  and  apply  to  equity  a  cor- 
responding f  ultiUmcut  by  the  other  part3\" 


512         FKY  OX  SPECIFIC  PERFOUMA^XE  OF  COXTP.ACTS. 

tracts  in  a  court  of  equity,  receive  in  all  courts  the  same 
construction  and  effect  as  tl'iey  would  formerly  have  received 
in  equity. (/)  In  other  words,  the  doctrines  and  rules  of 
equity  as  to  the  effect  of  of  lapse  of  time  are  now  applicable 
to  and  govern  every  contract  that  falls  within  the  jurisdic- 
tion of  any  of  the  courts,  superior  or  inferior,  (r/)  of  this 
country. 

These  doctrines  and  rules  then  we  now  proceed  to  con- 
sider. 

§  1044.  It  is  proposed  to  discuss  the  subject  in  hand 
under  the  following  heads,  viz.:— 

(1)  Cases  where  time  was  originally  of  the  essence  of  the 
■contract : 

(2)  Cases  where  time,  though  not  originally  of  the  essence 
of  the  contract,  has  been  engrafted  into  its  essence  by 
subsequent  notice : 

(3)  Cases  where  the  delay  has  been  so  great  as  to  consti- 
tute laches  disentitling  the  party  to  the  aid  of  the  court, 
and  evidencing  an  abandonment  of  the  contract  irresi^ec- 
tively  of  any  particular  stipulation  as  to  time  : 

(4)  Cases  where  time  does  not  run  : 

(5)  Cases  where  the  objection  on  the  ground  of  lapse  of 
time  is  waived. 

1.  Time  originally  of  the  essence  of  the  contract 
§  1045.  Time  is  originally  of  the  essence  of  the  contract 
in  the  view  of  the  court  of  equity,  whenever  it  appears  to 
have  been  part  of  the  real  intention  of  the  parties  that  it 
should  be  so,  and  not  to  have  been  inserted  as  a  merely 
formal  part  of  the  contract.  (/^^  As  this  intention  may 
either  be  separately  expressed,  or  may  be  implied  from  the 
nature  or  structure  of  the  contract,  it  follows  that  time  may 
be  originally  of  the  essence  of  a  contract,  as  to  any  one  or 

(/)  Jud.  Act.,  1873. 8.  25  (7) ;  Jud.  Act,  1875,       (p)  See  Jud.  Act,  1873,  b.  91. 
8.  10.    Cf.  Noble  V.  Edwards,  5  Ch.  D.,  378.  Qi)  Hipwell  v.  Knight,  1  Y.  &  C.  Ex.,  401. 


•  Therefore  the  time  of  payment,  in  a  contract  for  the  sale  of  lands,  may  be 
made  of  the  essence  of  the  contract,  and  on  a  default,  without  excuse,  or  any 
acquaintance  or  waiver  on  the  part  of  the  vendor,  equity  will  not  aid  the  vendee. 
Reed  v  (Chambers,  6  Gill  &  J.,  490.  See  Wells  v.  Smith,  2  Edw.  Ch.,  78;  S. 
C.  7  Paige,  23;  Smith  v.  Brown,  5  Gilm.,  305.  So  where  a  certain  act  has 
been  clearly  stipulated  to  be  done  within  a  given  time,  as,  for  example,  giving 
security,  a  party  will  not  be  relieved  against  his  failure  to  perform  the  act  at 
the  time  specified.     Doar  v.  Gibbes,  1  Bailey's  Ch.,  371. 


THE   LAPSE   OF   TIME.  513 

more  of  its  terms,  either  by  virtue  of  an  exi^ress  condition 
in  the  contract  itself  making  it  so,  or  by  reason  of  its  being 
implied.  It  will  be  convenient  to  consider  the  cases  sei)ar- 
ately  ;  premising,  however,  that  the  point  that  time  is  of 
the  essence  of  the  contract  is  one  which  should  be  made  by 
the  party  insisting  on  it  without  delay. (i)' 

(i)  Monro  v.  Taylor,  8  Ha.,  51,  62. 

'  2'ime  when  a  contract  is  complete.'\  Tlie  time  when  the  negotiation  cul- 
minates in  an  agreement  is  often  of  importance.  When  the  answer  containing 
the  acceptance  of  a  distinct  proposition,  is  dispatched  by  mail  or  messenger,  if 
due  dilligence  is  used,  and  no  intimation  that  the  offer  has  been  withdrawn  has 
been  received,  completes  the  contract.  Adams  v.  Lindsell,  1  B.  &  A.,  681; 
Mactier  v.  Frith,  6  Wend.,  103;  Levy  v.  Coke,  4  Ga.,  1;  Bri.sbane  v.  Boyd,  4 
Paige's  Ch.,  17;  Averil  v.  Hedge,  12  Conn.,  426;  Hamilton  v.  Lyeswing  Ins. 
Co..  5  Pa.  St.,  339;  Abbott  v.  Shepard,  84  N.  H.,  14;  Stockton  v.  Stockton, 
32  Md  ,  136;  Chicago  R.  R.  Co.  v.  Done,  43  N.  Y.,  260;  Potts  v.  Whitehead, 
20  N.  J.  Eq.,  55;  Kent's  Com.  (9th  ed.),  640.  The  agreement  is  held  to  date 
from  the  posting,  and  not  from  the  receipt  of  the  letter.  Potter  v.  Saunders,  6 
Hare,  1;  Brisbane  v.  Boyd,  4  Paige's  Ch.,  17;  Vassar  v.  Camp,  11  N.  Y.,  441; 
•Clark  V.  Dales,  20  Barb.,  42;  Falls  v.  Garther,  9  Porter,  605;  Chiles  v.  Nelson, 
7  Dana,  281;  Levy  v.  Coke,  4  Ga..  1;  Averil  v.  Hedge,  12  Conn.,  424;  Beck- 
with  V.  Cheever,  21  N.  H.,  41;  Bryant  v.  Boone,  55  Ga.,  438,  contra,  McCul- 
loch  V.  Eagle  Ins.  Co.,  1  Pick.,  278;  Hayer  v.  Middlesex  Ins.  Co.,  10  Pick., 
326;  Gillespie  v.  Edmonston,  11  Humph.,  553. 

When  time  made  a  distinct  feature  of  tlie  contract.']  It  makes  no  difference 
what  the  nature  of  the  subject  matter  is,  the  time  for  the  performance  of  the 
agreement  will  be  regarded,  when  the  time  of  performance  appears  to  have 
been  made  a  distinct  feature  of  the  transaction.  Ganetson  v.  Vanloon,  3  Iowa, 
128. 

Want  of  miitiialifi/,  time  "-of  the  essence."]  Where  there  is  a  want  of  mutual- 
ity in  the  obligations  arising"  from  the  transaction,  in  equity  as  well  as  at  law, 
time  is  of  the  essence.  Manghlin  v.  Perry,  35  ]\Id.,  352;  Magoffin  v.  Holt,  1 
Duvall,  95. 

Mmj  i^tipidate  that  time  ><hall  be  of  the  essence.]  Baron  Alderson  said  in  Hip- 
well  v.  KniiJ-ht,  1  Y.  &  C,  415:  "I  do  not  see  therefore  why,  if  the  parties 
choose,  even  arbitrarily,  to  stipulate,  provided  both  of  them  intend  to  do  so, 
for  a  particular  thing  to  be  done  at  a  particular  time,  such  a  stipulation  should 
not  be  carried  literallv  into  effect  in  a  court  of  equity.  That  is  the  real  con- 
tract. The  parties  had  a  right  to  make  it.  Why,  then,  should  a  court  of 
equity  interfere,  to  make  a  new  contract  which  the  parties  have  not  made  ? " 
See  also,  Stow  v.  Russell,  36  111.,  18;  Benedict  v.  Lynch.  1  John.'s  Ch.,  370; 
Kemp  V.  Humphrevs,  13  111.,  573;  Prince  v.  Griffin,  27  id.,  514;  Potter  v.  Tut- 
tle  22  Conn.,  512;"'Baldwin  v.  Vanvorst,  10  N.  J.  Eq.,  577;  Earl  v.  Halsey,  1 
McCarter(N.  J.  Ch.),  332;  Grigg  v.  Laudis,  21  N.  J.  Eq.,  494;  Fessler's  App., 
75  Pa.  St.,  483.  ZabrLskie,  Ch.,  said  in  Bullock  v.  Adams,  20  N.  .1.  Eq.,  367:  "A 
court  of  equity  has  no  more  right  to  disregard  an  express  stipulation  that  time 
shall  be  of  the  essence  of  the  contract,  than  it  has  to  give  a  year,  or  ten  years, 
or  ninety-nine  years,  for  the  payment  of  the  whole  or  of  one-half  of  the  pur- 
chase money  stipulated  for  in  cash,  if  it  should  appear  that  it  is  difficult  or  im- 
possible for  the  purchaser  to  pay  at  the  time  agreed  upon." 

Stipidations  as  to  time;  e.vamples.]  The  following  cases  will  show  the  effect 
of  stipulations  as  to  time:  Jones  v.  Noble,  3  Bush  (Ky.),  694;  Mason  v.  Payne, 
47  Mo.,  517;  Mitchell  v.  Wilson,  4  Edm.  Ch.,  697;  Heckord  v.  Sayre,  34  111., 
142-  Shuffleton  v.  Jenkins,  1  Morris  (Iowa),  427;  Reed  v.  Breedeu,  61  Pa.  St., 
460 ";  McClure  v.  King,  15  La.  An.,  220;  Gale  v.  Archer,  42  Barb..  320;  Troy 
V.  Clarke,  30  Cal.,  419.  Walworth,  Ch..  said  in  Smith  v.  Wells,  7  Paige's  Ch., 
22;  S.  C,  2  Edm.  Ch.,  78:  "Although,  in  theory,  the  interest  is  suppo.sed  to 
be  a  fair  equivalent  for  the  non-payment  of  money  at  the  time  agreed  upon,  we 
33 


614        FRY  ON  SPECIFIC  PFKFORMANCE  OF  C<JNTKACTS. 

§  10-16.  The  Court  of  Clumcerj^  seems  at  one  time  to  have 
gone  so  far  in  its  disregard  of  time  as  to  consider  that  it  was 
of  no  consequence  in  equity  \{j)  and  accordingly  Lord 
Tliurlow(7t)  seems  to  have  maintained  that  no  expression 

(j)  Gibson  v.  Patterson,  1  Atk  ,  12,  which       (k)  Gregson  v.  Riddle,  cited  by  Romilly 
has  been  thought  ail  erroneous  report.    See    arg.  7  Vee.,  268. 
Lloyd  V.  Collett,  4  Hro.  C.  C,  4G!)  n.  (3). 

all  know  that,  in  point  of  fuct,  the  persons  to  whom  it  is  due,  frequently  sus- 
tain great  losses  in  consequence  of  the  disappointment  which  the  legal  rate  of 
interest  cannot  compensate.  On  tlie  other  hand,  it  frequently  happens  that  tlie 
perfecting  of  the  title,  and  the  delivery  of  tlie  possession  of  the  premises  at 
the  time  contemplated  by  the  purchaser,  is  of  essential  benefit  to  him,  which, 
cannot  be  compensated  by  damages  which  are  ascertainable  by  the  ordinary 
rules  of  computing  damages.  It  would,  tlierefore,  not  only  be  unreasonable, 
but  entirel}'  unjust,  for  any  court  to  hold  that  parties,  in  making  executory 
contracts  for  tlie  purchase  or  sale  of  real  estate,  should  not  be  permitted  to 
make  the  time  of  performance  an  essential  and  binding  part  of  the  contract  in 
equity,  as  well  as  at  law,  where,  as  in  this  case,  the  other  partj^  was  fully 
apprised  of  the  intention  to  insist  upon  a  strict  performance  at  the  day.  Here 
there  was  no  such  impossibility  as  might  not  have  been  foreseen  and  provided 
against  bj-  proper  care  and  vigilance.  Under  such  circumstances,  if  the  prop- 
ertj^  had  very  much  increased  in  value  after  the  making  of  the  original  con- 
tract, the  defendant  is  fairly  entitled  to  the  benefit  thereof  under  the  agree- 
ment by  which  the  complainant  contracted  to  relinquisli  all  claims  upon  the 
property,  either  at  law  or  in  equity,  if  he  did  not  comply  with  the  terms  of 
the  agreement  at  the  day.  And  as  there  is  nothing  inequitable  or  unconscien- 
tious in  her  insisting  upon  this  part  of  the  contract,  1  think  the  vice-chancellor 
was  right  in  not  making  a  new  contract  for  her,  contrary  to  the  understanding 
of  both  parties  when  they  entered  into  this  agreement."  Land  was  sold  under 
a  written  contract,  which  contained  the  following  covenant:  "  In  the  event  of 
failure  to  comply  with  the  terms  hereof  hj  the  party  of  the  second  part,  the 
party  of  the  first  part  shall  be  released  from  all  obligations  in  law  or  equity  to 
convey  said  property,  and  said  party  of  the  second  part  shall  forfeit  all  right 
thereto."  The  vendee  failed  to  make  his  payments  without  excuse,  and  a  court 
ef  equity  held  that  he  could  not  be  i"elieved  from  the  consequences  of  his  de- 
fault. Rhodes,  J.,  said:  "Courts  will  not  inquire  into  the  motive,  or  the  suffi- 
ciency of  the  motive,  that  induced  the  parties  to  contract  that  time  should  be 
essential  in  the  performance  of  any  of  the  agreements  contained  in  the  con- 
tract of  purchase.  But  if  it  appears  that  the  parties  have  thus,  contracted, 
courts  of  equity  will  not  disregard  the  contract  in  order  to  give  effect  to  some 
vague  surmise  that  all  the  vendor  intended  to  secure  by  the  contract  was  the 
payment  of  the  purchase  monej%  with  interest  at  some  indefinite  time."  Grey 
v.Tubbs,  43  Cal.,  359. 

Time  loas  held  to  be  of  the  essence  of  iJie  contract  in  the  folhxcing  cases:  "In 
case  of  the  failure  of  the  said  S.  to  pay  the  afpresaid  sums  of  money  at  the 
dates  aforesaid,  or  any  part  thereof,  to  the  said  L.,  his  heirs  or  assigns,  then 
the  said  S.  shall  forfeit  to  the  said  L.  the  sums  alreadj"  paid,  and  no  deed  shall 
pass  for  said  land.  Held,  that  time  was  of  the  essence  of  such  a  contract. 
Snider  v.  Lehnherr,  5  Oregon,  385;  see,  also,  Westerman  v.  Means,  12  Pa. 
St.,  97. 

How  time  shall  be  reckoned-l  Where  the  contract  bore  an  impossible  date — 
e.  g.,  February  30,  the  time  was  held  to  be  reckoned  from  its  delivery.  Styles 
V.  Wardle,  4B.  &C.,  908. 

To  say  time  is  regarded  in  this  court,  as  at  laic,  is  quite  impossible.  ]  This  is  the 
language  of  Lord  Eldon  in  Seton  v  blade,  7  Ves.,  2G5.  Stiindations  having 
reference  to  time  merely,  are  construed  liberally  by  courts  of  equity,  unless  it 
is  Cwbliuctlj'  made  to  appear  that  it  -was  the  design  of  the  parties  to  make  time 
of  the  f- fence."  Bnmfield  v.  Palui(;r,  7  Blackf.,  227;  Mathews  v.  Gillis,  1 
Iowa,  24..;  Hoffman  v.  Ilumner,  7  N.  J.  Eq.,  2G3;  Kirchwal  v.  Swope,  6 
^ionr.,  oG;J;  Evving  v.  Course,  6  Ind.,  313;  Keller  v.  Fisher,  7  id.,  718;  Jones 


THE   LAPSE   OF   TIME.  515 

in  the  contract  could  make  time  of  the  original  essence 
of  it.  Lord  Kenyon,  M.  R.,  liowever,  maintained  the 
contrary  :(Z)  Lord  Thmiow's  doctrine  was  doubted  by 
Lord  Eldon  -.{m)  and  accordingly  express  stipulations  render- 
ing time  of  the  essence  have  repeatedly  bf^en  maintained  as 
valid  and  binding  in  equity, (^0  iii  respect,  for  instance,  of 
covenants  for  the  renewal  of  leases,  (o)  and  stipulation  as  to 
the  time  for  j^ayment  of  the  deposit(^)  or  the  balance  of 
the  purchase-money .  (^)' 

(l)  Mackreth  v.  Mavlar,  1  Cax,  -259  (o)  Baynham  v.  Guy's  Hospital,  3  Ves.,  295. 

(m)  In  ^eton  v.  Slacle,  7  Ves  ,  270.  (p)  Honeyman  v.  Marryat  21  Beav.,  14,  24. 

(//)  Hudson  V.  Bartram  3  Mad.,  440;  Lloyd  {q)  Barclay  v.  Messenger,  22  W.R.,  522;  43 

T.  Ripijingale,  cited  1  Y.  &  C.  Ex., 410.  L.  J.  Oh.,  449. 

V.  Robins,  29  Me.,  351;  Wolton  v.  Wilson,  30  Miss.,  576;  Younger  v.  Welch, 
23  Tex.,  417;  Runnels  v.  Jackson,  1  How.  (Miss.),  385;  White  v.  Butcher,  6 
Jones  Eq.,  281;  Smote  v.  Rea,  19  Md.,  398;  Hannah  v.  Ratekin,  43  111.,  462; 
Miller  V.  Miller,  25  N.  J.  Eq.,  354;  Converse  v.  Blumrich,  14  Mich.,  109. 

Stipulation  as  to  time  inserted  as  a  penalty  merely. '\  Where  there  is  a  stipula- 
tion that  a  party  shall  forfeit  his  rights  under  the  contract  in  case  of  default, 
and  it  is  clearly  shown  that  such  stipulation  was  inserted  as  a  penalty  merely, 
to  induce  more  prompt  performance  ot  the  contract,  and  where  the  party  in 
default  has  given  a  reasonable  excuse  for  the  delay,  and  has  acted  throughout 
in  good  faith,  and  the  other  party  has  sustained  no  damage  by  the  delay,  spe- 
cific performance  will  be  decreed.  Quinn  v.  Roath,  37  Conn.,  16;  see,  also, 
Scarlett  v.  Stein,  40  Md.,  513;  Steele  v.  Branch,  40  Cal.,  3;  Moote  v.  Scrinen, 
38  Mich. ,  500. 

Time  icithiih  icJnch  a  contract  is  to  be  performed. '\  Formerly  equity  paid  little 
attention  to  the  mere  want  of  punctuality,  and  carried  the  doctrine  of  relief 
to  an  extravagant  length.  Judge  Story  says,  in  Story's  Eq.  Juris.,  §  780: 
"Equity  went  beyond  the  true  limits  to  which  every  jurisdiction  should  be 
confined,  as  it  amounted  to  a  substitution,  pro  tanto,  of  what  the  parties  had 
not  contracted  for.  But  the  tendency  of  the  modern  decisions  is  to  bring  the 
doctrine  within  such  moderate  bounds  as  seem  clearly  indicated  by  the  princi- 
ples of  equity,  and  by  a  reasonable  regard  to  the  common  accidents,  mistakes, 
infirmities  and  inequalities  belonging  to  all  human  transactions."  See,  also. 
Drew  V.  Han.son,  6  Yes.,  678;  Halsey  v.  Grant,  13  Ves.,  76;  Linton  v.  Potts,  5 
Blackf.,  396;  Bowyer  v.  Bright,  13 'Price,  702;  Barnard  v.  Lee,  97  Mass.,  93. 

Time,  how  recjarded  at  law?^  At  law,  the  plaintiff  must  show  performance 
within  a  reasonable  time  ;  and  in  cases  where  the  time  is  fixed,  he  must  show 
performance  within  such  time.  Berry  v.  Young,  2  Esp.,  640,  n;5McCulloch 
V.  Dawson.  1  Cart.  (Ind.),  413;  Stowell  v.  Robinson,  3  Ring.  (N-  C;,  938; 
Wilde  v.  Fort,  4  Taunt.,  334;  Alexander  v.  Godwin,  1  Bing.  (N.  C.J,  671; 
O'Kane  v.  Kiser,  25  Ind.,  168. 

Time,  Jioio  regarded  in  equity  f]  Equity  holds  time  to  be  prima  facie,  non- 
essential. Setou  V.  Slade.  7  Ves.,  273;  Radclitfe  v.  Warrington,  13  Ves.,  336; 
Parkin  v.  Thorold,  16  Beav.,  59;  Pincke  v.  Curtis,  4  Bro.  C.  C,  329.  In 
Peters  V.  Delaplaine,  49  N.  Y.,  367,  Church,  C.  J.,  said:  "The  time  within 
which  actions  may  be  brought  for  specific  performance  of  contracts,  has  not 
been  extended  by  implication  by  the  statutes  prescribing  a  time  within  which 
the  action  must,  in  all  cases,  be  brought.  The  question  still  remains,  and  must 
be  decided  in  each  action,  although  brought  within  the  statutory  limit  as  to 
time,  whether,  under  the  peculiar  circumstances,  equity  and  good  conscience 
require  that  the  contract  shall  be  specifically  performed,  or  whether  the  party 
shall  be  left  to  his  remedy  at  law  for  the  uou-perfoimance."  See,  also.  King 
V.  Hamilton,  4  Pet.  (U.  S  },  311. 

^  It  is  clearly  <he  rule  that  equity  will  not  disregard  the  manifest  inteuiion  of 
the  parties.     It  is  only  reciuired  that  they  shall  make  time  essential^to  induce 


516        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

§  10B7.  In  order  to  render  time  thus  essential,  it  must 
be  clearly  and  expressly  stipulated,  and  must  also  have 
been  really  contemplated  and  intended  by  the  parties  that 
it  shall  be  so  :  it  is  not  enough  that  a  time  is  merely  men- 
tioned dui'ing  which  or  before  which  something  shall  be 
done. 

§  1048.  Therefore  in  a  case  wdiere  the  contract,  dated  the 
23d  of  October,  was  to  grant  a  new  lease  "  upon  condition" 
of  the  intending  lessee  paying  on  or  before  the  end  of  the 
month  a  premium  of  1,000  guineas,  Lord  Eldon  nevertheless 
refused  (on  an  interlocutory  application)  to  treat  the  period 
limited  by  the  contract  as  essential,  considering  that,  upon 
the  facts  of  the  case,  the  amount  of  tlie  premium  was  really 
the  only  thing  contemiolated  by  the  parties,  and  that  there 
was  nothing  to  show  that  payment  at  a  particular  day  was 
the  object,  (r) 

So,  again,  wiiere  a  day  was  specified  for  the  delivery  of 
the  abstract,  it  w^as  held  non-essential,  although  the  pur- 
chaser upon  its  expiration  immediately  refused  to  pro- 
ceed:(.?)  and  in  Parkin  v.  Thorold,(^)  where  a  day  had  been 
specified  for  the  comi^letion  of  the  contract,  Lord  Romilly, 
M.  R.,  held  it  to  be  non-essential,  though  in  so  doing  he 
difi'ered  from  the  previous  observations  of  Lord  Cranworth, 
made  (when  V.  C.)  in  the  same  case  at  an  earlier  stage,  (w)' 

(r)  Hearne  V  Tenant.  13  Ves.,  287.  Jessel,  M.  R.,  in  Barclay  v.  Messenger,  23 

(s)  Kolierts  V.  Berry,  16  Beav.,  31,  affirmed  W.  R.,  522;  43  L.  J.  Ch.,  499. 

3  De  G.   M.  &  G.,  281.    Consuler  Venn  v.  (m)  Parkin  v.  Thorolrl.  3  Sim.  N.  S.,  1.    Dis- 

Cattell.  27  L   T  .  469.  tinguish  Barclay  v.   Messenger,  22  W.  R., 

(<)  16  Beav.,  50;  but  see  the  jutlgment  of  522;  43  L.  J.  Ch.,  449. 

the  court  to  so  consider  it.  Scott  v.  Fields,  7  Ham  ,  90  (2d  pt.);  Benedict  v. 
Lynch,  1  Jolin.'s  Ch.,  370;  Doar  v.  Gibbes,  1  Bailey's  Ch.,  371 ;  Wells  v.  Smith, 
7  Paige,  2i  A  most  powerful  argument  in  favor  of  the  law,  as  it  now  stands, 
was  made  by  Lord  Loughborough  in  Lloyd  v.  Collett,  4  Bro.  C.  C,  469. 
"There  is  a  difficulty,"  said  his  honor,  "to  comprehend  how  the  essentials  of 
a  contract  should  be  different  in  equity  and  at  law.  It  is  one  thing  to  say  the 
time  is  so  essential  that,  in  no  case  in  which  the  day  has  been  by  any  means 
suffered  to  elapse,  the  court  would  relieve  against  it  and  decree  performance. 
The  conduct  of  the  parties,  inevitable  accident,  etc. ,  might  induce  the  court  to 
reUeve.  But  it  is  a  different  thing  to  say  the  appointment  of  a  day  is  to  have 
no  effect  at  all;  and  that  it  is  not  in  the  power  of  the  parties  to  contract,  that 
if  the  agreement  is  not  executed  at  a  particular  time,  they  shall  be  at  liberty  to 
rescind  it."  "  I  want  a  case  to  prove  that  where  nothing  has  been  done  by  the 
parties,  this  court  will  hold,  in  a  contract  of  buying  and  selling,  the  rule  that 
the  time  is  not  an  essential  part  of  the  contract.  Here  no  step  had  been  taken 
from  the  day  of  the  sale  for  .six  months  after  the  expiration  of  the  time  at  which 
the  contract  was  to  be  completed.  If  a  given  default  will  not  do,  what  length 
of  time  will  do?  An  cquitj'  arising  out  of  one's  own  neglect!  It  is  a  singular 
head  of  equity! " 

1  Wells  V.  Wells,  3  Ired.'s  Ch.,  59G;  Runnels  v.  Jackson,  1  How.  (Miss.),  368; 
Attorney-General  v.  Purmont,  5  Paige,   620.     But  in  Benedict  v.  Lynch,  1 


THE   LAPSE   OF   TIME.  517 

Lapse   of   time   in  payment  of   the  purchase-money   may 
generally  be  recompensed  by  interest  and  costs. (?)j 

§  1049.  Time  may  be  implied  as  essential  in  a  contract, 
from  the  nature  of  the  subject-matter  with  which  the  parties 
are  deahng.  "If,  therefore/'  said  Alderson,  B.,(2^)  "'the 
thing  sold  be  of  greater  or  less  value  according  to  the 
effluxion  of  time,  it  is  manifest  that  time  is  of  the  essence 
of  the  contract :  and  a  stipulation  as  to  time  must  then  be 
literally  complied  with  in  equity  as  well  as  in  law."  In 
respect  of  reversionary  interests,  therefore,  it  is  held  to  be 
of  the  essence  of  justice,  that  contracts  for  sale  should  be 
executed  immediately  and  without  any  delay, (a?)  unless 
indeed  the  terms  of  the  contract  are  such  as  to  show  that 
the  parties  contemplated  the  possible  occurrence  of  a  delay, 
and  intended,  in  the  event  of  that  delay  occuring,  to  keep 
the  bargain  alive.  (//)' 

§  10."50.  So,  again,  where  the  subject-matter  is  from  its 
nature  exposed  to  daily  variation,  the  court  inclines  to  hold 
time  to  be  material,  as  in  the  sale  of  the  stock  in  a  public 
house,  (5")  in  contracts  for  granting  annuities  on  lives,  (a)  and 
in  purchases  of  government  stock.  (6)' 

(V)  Vernon  v.  Stephens,  2  P.  Wms.,  66.  (z)  Coslake  v.  Till,  1  Russ.,  376;  Weston  v. 

<io)  In  llipwell  v.  Knight,  1  Y.  &  0.  Ex  ,  Savage.  10  Oh.  D  .  741.      ^  „    ^„ 

416  («)  Withvv.  Cottle.  T.  &  R.,  78. 

(ix)  Newman  v.  Ro^erf?,  4  Bro.  0.  C,  391;  (b)  Dolorct  v.  Rothschild,  1  6  &  S.,59!i    See 

Spurrier  v    Hancock,  4  Ves.,  6G7.  also  Lewis  v.  Lord  Lechniere,  10  Mod.,  503 

[y)  Patrick  V.  Milner,  3  C.  P.  D  ,  348.    See 
infra,  §  1057. 

Jolin.'s  Cli.,  370,  a  clause  to  the  effect  that  if  the  plaintiff  failed  in  either  of  his 
payments  the  agreement  was  to  be  void,  was  thought  to  be  abundantl}'  distinct, 
and  to  render  time  of  the  essence  of  the  contract.  See  Mitchell  v.  Wilson,  4 
Edw.'s  (  h.,  (>i)7. 

1  Time  is  of  the  essence  of  the  contract  wherever  it  appears  material  to  the 
parties,  and,  therefore,  where  the  value  of  the  property  has  greatly  diminished 
and  injustice  might  be  done,  equity  will  not  decree  a  specific  performance. 
McKav  V.  Carriugton,  1  McLean,  50.  '1  hercfore,  in  Pillow  v.  Pillow,  3 
Humph.,  G4-4,  where  it  was  agreed  between  a  judgment  creditor  and  debtor, 
that  the  latter  should  pav  the  judgment  in  land,  at  a  value  to  be  fi.xed  by  per- 
sons designated,  and  the  debtor  defeated  the  performance  of  the  agreement 
until  his^land  had  risen  in  vahie.  it  was  held  that  he  could  not  maintain  a  bill 
to  compel  a  specilic  performance  of  the  agreement.  See,  also.  Holt  v.  Rogers, 
8  Pet.,  420  And  where  land  lias  been  purchased  to  sell,  and  such  a  purpose  a 
lawful  one,  which  may  be  considered  by  a  court  of  chancery,  time  will  be 
deemed  of  the  essence  of  the  contract.  3IcKay  v.  Carriugton,  1  :McLcan,  5U; 
see  .Jones  v.  Robbins,  20  Me  ,  351. 

2  "It  seems  the  doctrine  of  the  court  that  in  almost  every  case,  except  the 
purchase  of  lands  in  fee  simple  (but  in  that  case  only  by  express  agreement  ; 
Sug.  V.  &  P.,  2112),  time  will  be  considered  as  of  the  essence  of  a  contract. 
The  cases  establish  that  it  will  Im  considered  essential  in  tlie  ]-turchase  of  a 
house  for  residence  (Levy  v.  Linds,  3  Mt-r.,  81),  or  of  lands  or  houses  tor  the 
purposes  of  trade  (Coslalie  v.  Till,  1  Russ.,  376;  Walker  v.  JeflVeys.  1  Ha.,  341), 


518         FF.Y  ON  SPECIFIC  PKKFOKMA^CE  OF  CONTKACTS. 

§  10."51.  And  so,  again,  where  the  object  of  the  contract 
is  a  commercial  enterprise,  the  conrt  is  strongly  inclined  to 
hokl  time  to  be  essential,  whether  the  contract  be  for  the 
pnrcliase  of  land  for  such  jjurpose,  or  more  directly  for  the 
prosecution  of  trade. (c)  This  principle  has  been  acted  on 
in  tlie  matter  of  a  contract  respecting  land  which  had  been 
purchased  for  the  erection  of  mills, (cZ)  and  in  several  cases 
of  contracts  for  the  sale  of  public  houses  as  going  con- 
cerns, (e)  For  the  purchaser  of  a  public  house  presumablj'^ 
buys  it  for  the  purpose  of  carrying  it  on,  and  it  would  be 
ruinous  to  him  if  he  were  kept  out  of  it.(/) 

§  105'3.  The  same  principle  applies  with  especial  force 
to  contracts  relating  to  mines.  The  nature  of  all  mining 
transactions  is  such  as  to  render  time  essential:  'for  no 
science,  foresight,  or  examination  can  afford  a  sure  guar- 
antee against  sudden  losses,  disappointments,  and  reverses, 
and  a  person  claiming  an  interest  in  such  undertakings 
ought  therefore  to  show  himself  in  good  time  willing  to 
partake  in  the  XDOSsible  loss  as  well  as  profit. (^7)  'So -in 
several  cases  time  has  been  held  of  the  essence  in  contracts 
for  the  sale  of  mines  and  works.  (7^) 

§  105S.  Again,  where  the  contract  had  relation  to  the 
supply  of  coal,  and  eleven  months  -were  allowed  to  elapse 
before  filing  the  bill,  the  article  being  one  fluctuating  from 
day  to  day  in  its  market  price,  the  court  held  the  delay  a 
ground  for  declining  its  interference :(?')  and  where  the 
contract  contemplated  the  payment  of  moneys  to  be  applied 

(c)  Walker   v.    Jeflfteys,    1    Ha.,  341,   348;  gastv.  Turton,  1  T.  &  C  C.  C  ,  UO,  and  in 

CoBlake  v.  Till,  1  Russ.,  376,  Clegg  v.  Edmondfion,  8  De  G.  M.  &  G.,  814. 

(rf)  Wright  V.  Howard.  1  S.  &  S.,  190  (A)  Parker  v.  Frith,  1  S.  &  S.,  199  o.;  per 

(e)  Senton  v.  Mapp.  3  Coll.,  .556  (where  the  Lord  Eldon  in  City  of  London  v.  Mitlbnl,  14 

essentiality  of  time  was  arrived  at  from  the  Ves.,  .58;  Walker  v  Jeffrevs,  1  Ha.,  341;  AUo- 

conditions    as   well    as   from    the    subject-  way  v.  Braine, -26  Beav.,  57.5;  and  of.  Eacls  v. 

matter);   Day  v.   Luhke,  L.   R.    .5  Eq.,  336;  Williams.  4  De  G    M.  &  G  .  674;  Clegg  v. 

Cowles  V.  Gale,  L.  R    7  Ch.,  12.    .see  too  Edraondson.  8  ib  787;  Uuxham  v.  Llewellyn, 

judgmentof  Hall,  V.C.,m  Westonv.  Savage,  21  W.  R..  570,766;  Glasbrook  v.  Richardson, 

10  Ch  D.,  741,  and  Claydon  v.  Green,  L.  R.  3  23  W.  R.,  51;  intra,  §  1078. 
C.  P.,  511.  (i)  Pollard  v    Clayton,  1  K.  &  J.,  463;  per 

(/)  Per  James,  L.  .J.,  in  Cowles  v.  Gale,  L.  Lord  Re(iesdale  iu  Crofton  v.  Orrasby,  2  Sch. 

R.  7Ch,l.-.  &  Lef,,  604      Cf.  Huxham  v,  Llewellyn,  21 

(g)  Per  Knight  Bruce,  L.  J,,  in  Prender-  W.  R.,  570,  766;  infra,  §  1079. 

in  dealing  for  reversionary  interests  (Newman  v.  Rogers,  4  B.  C  C,  391),  or 
concurrent  leases  (Carter  v.  Dean  of  Ely,  7  Sim.,  2lT),  where  the  contract  is 
for  the  grant  of  an  annuity  for  the  life  of  an  individual  (Withy  v.  Cottle,  T.  & 
R.,  81),  and  in  covenants  to  renew  leases  for  lives  or  years  (Eaton  v.  Lyon,  3 
Ves.,  690).  where  the  contract  relates  to  stock  in  the  pul)lic  funds  (Forrest  v. 
Elwes,  i  Ves,,  492),  or  where  there  is  a  reference  to  ar))itrators  as  to  the  price 
(Morse  v.  Merest,  6  Mad.,  27),  or  where  the  vendors  are  an  ecclesiastical  cor- 
poration or  other  fluctuating  body.  Carter  v.  Dean  of  Ely,  ubi  sup."  Batten 
Spec.  Per.,  12(3,  127;  see  Southern  Life  Ins.  Co.  v.  Cole,  4  Flor.,  359. 


THE   LAPSE    OF   TIME.  519 

towards  obtaining  patents,  time  was  from  the  nature,  of  the 
object  in  view  held  to  be  of  ^^e  essence.  (./) 

§  10."5i.  So,  again,  where  a  contract  specified  a  time  by 
which  calls  were  to  be  paid  up,  or  in  default  the  shares 
were  to  be  forfeited  ;(^)  and  where  a  contract  gave  an 
option  to  be  exercised  before  a  certain  time  to  convert  loan 
notes  into  shares  :(Z)  in  both  these  cases  time  was  from  the 
nature  of  the  subject-matter  of  the  contract  held  to  he 
essential. 

§  1055.  The  case  of  Macbride  v.  Weekes(m)  is  a  strong 
illustration  of  this  principle  ;  for  there  the  plaintiif  by  the 
contract  undertook  to  purchase  a  field  adjoining  his  own, 
•to  procure  an  assignment  of  a  term,  and  to  do  other  things 
which  usually  require  time  :  but  the  nature  of  the  subject- 
matter  of  the  contract,  which  was  a  colliery,  was  held  to 
make  time  of  the  essence  of  the  contract,  to  the  extent  of 
rendering  it  incumbent  on  the  vendor  to  use  his  utmost 
diligence  in  completing  the  contract,  and  giving  the  pur- 
chaser a  right  to  decline  completing,  if  the  vendor  failed  in 
so  exerting  himself.  In  this  case  the  purchaser,  after  little 
more  than  two  months  had  elapsed  from  the  date  of  the 
contract,  gave  the  vendor  notice  that,  unless  he  completed 
it  within  another  month,  the  purchaser  would  rescind,  and 
the  time  so  limited  by  the  purchaser  was  held  to  be,  under 
the  circumstances,  reasonable. 

§  1056.  The  essentiality  of  time  may  also  be  implied 
from  the  surrounding  circumstances  connected  in  each  case 
with  the  particular  contract.  (?i)  Thus  where  a  man  pur- 
chasing a  house  with  the  object  of  immediately  occupying 
it  as  his  own  residence  stipulated  in  the  contract  that  pos- 
session should  b§  given  on  a  specified  day,  and  the  vendor 
failed  to  show  a  good  title  by  that  day,  it  was  held  that  the 
stipulation  as  to  time  was  of  the  essence  of  the  contract, (o) 
and  the  vendor,  though  he  offered  actual  possession,  failed 
to  enforce  specific  performance,  (i?)  Possession  in  such  a 
contract  means  possession  with  a  complete  title  previously 
shown.  (^) 

U)  Payne  V.  Banner,  15  L.  J.  Ch  ,  227.  (w)  Per  Turner.  L.  J.,  in  Roberts  v.  Berry, 

(k)  Sparks  V.  Liverpool  Waterworks  Co.,  3  Ue  G.  M.  &  G.,  291.                    «„„♦..„.„    ok 

13  Ves.  428  (o)  See  Gedye  v.  Duke   of  Montrose,  26 

(«)  Campbell  V.  London  &  Brighton  Rail-  Beav.,4.V                            t    n  \  m.    r< 

way  CO  .  5  H.  A.,  .'■>19,  529.  (P)  Tilley  v.  Thomas,  L  R.  3  Ch.  61. 

(/«)  22   Beav.,    533,   539;    cf.   Huxham  v.  (9)  Per  Rolt  L.  J.,  L    R.  3  Ch.,  6b.    As  to 

Llewellyn,  21  W.R.,  570,766;  and,  as  to  the  •  possession,' see  also  Lake  v.  Dean,  2b  Beav., 

notice,  infra,  §  1062  et  scq.  •>""• 


520         FKY  ox  SPECIFIC  PERFOTJ.MA]NrCp:  OF  CONTRACTS. 

§  1057.  The  later  case  of  Webb  v.  Hiighes(r)  is  not  at 
variance  with  this  principle,  bat  illustrates  a  limitation  of 
it.  There,  too,  the  house  and  land,  the  subject-matter  of 
the  contract,  were  required  by  the  purchaser  for  immediate 
residential  occupation,  but  the  conditions  of  sale  after  nam- 
ing a  day  for  comp)letion  went  on  to  provide  that  if,  from 
any  cause  whatever,  the  purchase  should  not  then  be  com- 
pleted, the  purchaser  should  pay  interest  on  the  unpaid 
purchase-money  from  that  day  until  the  actual  completion 
of  the  purchase  ;  and  it  was  accordingly  held  that,  inas- 
much as  parties  to  the  contract  evidently  contemplated  the 
possibility  of  the  conq^letion  being  x^ostponed  beyond  the 
day  named,  time  was  not  of  the  essence.  The  ratio  deci- 
dendi of  this  case  is  obviously  applicable  whatever  the 
nature  of  the  subject-matter  of  the  contract,  and  it  has 
accordingly  been  applied  even  to  the  sale  of  a  reversionary 
interest,  {sy 

§  1058.  Again,  where  the  members  of  a  company  in 
general  meeting  agreed  to  certain  conditions  on  wdiich  dis- 
senting members  should  be  allowed  to  retire  from  the  com- 
pany, and  one  of  those  conditions  fixed  a  date  by  which  the 
option  to  retire  was  to  be  declared,  the  House  of  Lords  held 
that  that  date  was  so  essential  a  part  of  the  arrangement, 
that  the  directors  had  no  power  to  allow  any  member  to 

(r)  L.  R.  10  PJq.,  281.  (s)  Patrick  v.  Milner,  2  C.  P.  D.,  342. 

'  ^Mle)•e  no  time  hats  been  desirjnated.'\  An  action  for  specific  performance  can- 
Dot  Ijc  maintained,  where  no  time  has  been  designated  for  the  performance  of 
the  contract.     Potts  v.  Whitehead,  20  N.  J.  Eq.,  55. 

Contracts  for  the  sale  of  real  estate;  time  not  usually  "of  the  essence."'\  In 
such  cases  the  intent  usually  is,  that  the  purchase  shall  be  completed  within  a 
reasonable  time  under  the  surrounding  circumstances  of  the  case.  Rader  v. 
Nea],  Vd  W.  Va.,  374;  Chadwell  v.  Winston,  ;3  Teun.  Ch.,  110;  Abbott  v. 
L'Hommedien,  10  W.  Va.,  677. 

Parol  proof  that  time  was  "of  the  esse7ice."'\  In  an  action  for  specific  perform- 
ance, parol  evidence  may  be  introduced  to  show  that  time  was  to  be  considered 
as  of  the  essence  of  the  contract  when  it  was  made.  King  v.  Kuckman,  20 
N.  J.  Eq.,  316. 

When  performance  icithin  a  given  time  material.']  Time  is  of  the  essence,, 
where  the  other  party  would  be  seriously  injured  by  a  non-performance  within 
the  stipulated  time.  Doar  v.  Gibbes,  Bailey's  Eq.,  371.  Or,  whenever  from 
change  of  circumstances,  a  performance,  which  would  alone  answer  the  ends 
of  justice,  has  become  impossible.  Pratt  v.  Low,  9  Cranch,  406;  Longworth 
V.  Taylor,  1  McLean,  395;  Garnett  v.  Macon,  G  Call.,  308.  See  as  examples 
where  time  was  held  material,  Hipwell  v.  Knight,  1  Y.  &  C.  Ex.,  401;  New- 
man V.  Rogers,  4  Bro.  C  C,  391;  Merritt  v.  Brown,  19  N.  J.  Eq.,  286;  Gall  v. 
Archer,  42'^Barb.,  320;  Edwards  v.  Atkinson,  14  Tex.,  373. 


THE   LAPSE   OF  TIME.  521 

retire  who  had  not  declared  his  option  within  tlie  limited 
time.(^^) 

§  1059.  Where  hardship  would  result  from  considering 
time  immaterial,  as  where  delay  in  completion  would 
involve  one  of  the  jiarties  in  a  serious  liability  or  loss,  the 
court  will  incline  to  consider  time  as  being  of  the  essence. 
Thus  where  a  tenant,  without  any  definite  interest,  agreed 
for  the  sale  of  his  goodwill  and  business  to  a  purchaser  to 
be  completed  on  the  2otli  of  Marcl),  that  day  Avas  considered 
essential,  inasmuch  as  if  the  conti^ict  were  not  then  com- 
pleted, the  vendor  might  render  himself  liable  as  tenant  for 
the  ensuing  jen.v.(u)  And  so,  again,  where  the  body  to  par- 
ticipate in  the  purchase-money,  being  a  chapter,  was  liable 
to  variation,  non-payment  of  the  consideration  money  at 
the  specified  time  was  held  fatal  to  the  subsistence  of  the 
contract.  («)' 

§  1<$60.  Where  the  vendor  stipulates  that  time  shall  be 
of  the  essence  in  respect  of  some  of  the  conditions  in  his 
favor,  the  court  inclines  to  hold  it  essential  in  respect  of 
others  also  against  him.  Vendors  so  stipulating  for  the 
essentiality  of  time  in  their  favor,  ''cannot  fairly,"  said 
Knight  Bruce,  V.  C,  "complain  of  being  held  strictly  to 
the  conditions  themselves  *  -^  *  The  plaintiffs'  propo- 
sition is  that  the  purchaser  shall  be  held  b}^  a  cable,  and  the 
vendors  by  a  skein  of  silk."(?o)  Accordingly  where  it  was, 
by  one  clause  of  the  contract,  provided  that  the  vendors 
should  deliver  the  abstract  to  the  purchaser  within  twentj'- 
one  days  from  the  date  of  the  contract,  and  by  another 
chmse,  that  the  purchnser  should  send  in  his  requisitions 
within  twenty-eigiit  days  from  the  delivery  of  the  abstract, 
and  in  this  respect  time  should  be  of  the  essence  of  the  con- 
tract;  and  the  vendors  did  not  deliver  the  abstract  until 
more  than  two  months  after  the  date  of  the  contract ;  the 
court  refused  to  hold  the  purchaser  bound  to  comi')ly  with 

(t)  Houldsworth  v.  Evans,   L.  R.  3  H.  L.,  Ch.  D.,  589;  Roberts  v    I'errj-.  3  De  G.  M.  & 

263  G.,  292 ;  St.  Leon.  Vend  ,  227 

(?/)  Coslake  v.  Till.  1  Russ.,  376;  Wells  v  (ri  Carter  v   DeancfElv  7  Sim  . -ni. 

Max^\ell  (No.  1),  .32  Beav.,  408,  aflirmed33  I..  (w)  Seaton  v.  .Miipp,  2  Coll.,  556,  £.64. 
J.  Ch.,44,   IIW.  R.,  842;  Gr.  en  v.  Sevin,  13 

'  Dour  V.  Gibbes,  1  Bailey's  Ch.,  371;  Colcock  v.  Butler,  1  Dessau.,  307, 
■where  the  court  refused  to  tlecree  specific  performance  of  a  contract  for  the 
sale  of  a  house,  where  there  had  been  a  delay  of  ei;,dit  months  in  completing 
the  house,  which  had  greatly  depreciated  in  the  meantime.  See  .Jackson  v. 
Edwards,  22  Wend.,  498. 


522         FRY  ox  SPECIFIC  PERFORMANCE  OF  COTs^TRACTS. 

the  stipulation  as  to  tlie  time  for  sending  in  requisitions, 
holding  that,  in  such  a  case,  the  time  for  taking  the  objec- 
tions, and  the  mode  in  ^^■hit■h  they  are  to  be  considered  as 
waived,  should  depend  upon  the  general  principles  of  the 

court.  (i2^) 

§  1 061 .  Where  the  contract  contains  stipulations  in  favor 
of  one  party  and  not  of  the  other,— as,  for  instance,  an 
option, — or  is  in  anywise  unilateral,  the  court,  if  it  does  not 
consider  time  as  originally  of  the  essence,  will,  as  we  shall 
hereafter  see,  look  at  it  with  more  than  usual  strictness. (2/) 

2.   Time  engrafted  hy  notice. 

§  iOOS.  Where  time  was  not  originally  of  the  essence  of 
the  contract,  but  one  party  has  been  guilty  of  gross, 
vexatious,  unreasonable,  or  unnecessary  delay  or  default  in 
relation  to  it,  the  other  party  becomes  entitled  to  limit  a 
reasonable  time  within  which  the  contract  shall  be  perfected 
by  the  other  ;  and  in  default  of  obedience  to  such  notice  the 
court  will  not  enforce  specific  performance,  but  will  leave  the 
parties  to  their  strictly  legal  rights.  (2)'  It  is  to  be  observed 
that  it  is  only  when  such  delay  or  default  has  happened 
*  that  this  right  occurs.  There  is  no  general  right  in  either 
party  to  limit  a  time. 

§  1063.  This  beneficial  principle  is  of  comparatively 
recent  introduction.  In  a  case  before  Leach,  V.  C,  in 
1821,  he  did  not  consider  it  to  be  then  decided  that  time 
could  thus  be  made  essential  by  subsequent  notice  ;(a)  and 
where  clear  notice  had  been  given  that  a  purchaser  would 
insist  on  completion  by  the  time  specified,  Lord  Erskine 
had  previously  refused  to  consider  time  as  of  moment  in  the 
contract. (&)    But  the  principle  is  now  well  established. 

§  1064.  It  is  not,  of  course,  possible  for  either  party 
arbitrarily  and  suddenly  to  put  an  end  to  negotiations  as  to 
title,  (c)  or  other  matters  pending  between  the  parties.  The 
time  specified  by  the  notice  must  be  reasonable,'  i.  e.  long 

(«)  Upperton  V.  Nickolsoii,  L  R  6Ch.,436.  v.  Lamb,  9  Beav.,  502;  Nokes  v.  Lord  Kil- 

(w)  tiMiC  inl'ra,  §  1073.     AS  to  the  exercise  of  morey,  1  De  G   &  Sm.,  444. 

oplionH,  see  Moss  v.  Barton,  L'.  K.  1  Eq  ,  474        (a)  lleynokis  v.  Nelson,  6  Mad.,  IS. 

(lease),  and  Austin  v.  Tawney,  L.  K.  2  Cli.,        (b)  Hadclifte  v.  sVarrington,  12  Ves.  326. 

143  (purchase).  (c)  Taylor  v.  Brown,  2  Beav.,  180;  Green 

(8)  Taj  lor  V.  Brown,  2  Beav.,  180;  Benson  v.  Seviu,  13  Ch.  U.,  589. 


'  Wi.swall  V.  ItlcGowan,  1  Hoff.'s  Ch.,  125,  expresses  precisely  this  principle. 


THE    LAPSi:    OF   TIME.  523 

enough  foi-  tlie  proper  doing  of  tlie  things  required  to  be 
done  -.ifl)  if  it  be  not  so  (and  the  question  of  reasonableness 
must  be  determined  as  at  the  date  wlien  the  notice  is 
given[e]),  the  notice  will  fail  in  engrafting  time  into  the 
essence  of  the  contract.  Thus,  in  one  case,  six  weeks, 
being  a  "less  time  than  the  vendor  took  to  furnish  the 
abstract,  were  held  to  be  an  unreasonably  short  time  for  the 
vendor  to  insist  on  the  ]iurchaser's  completing,  and  the 
notice  was  therefore  inoperative ;(/")  in  another  case,  four- 
teen da.ys  were  held  not  to  be  a  reasonable  time-  within 
whicli  to  require  the  plaintiffs  to  produce  a  deed'  and  com- 
plete the  title  •,{gy  and,  in  another,  Avhere,  after  negotiations 
as  to  the  title  had  been  going  on  for  upwards  of  three  years, 
the  purchaser  gave  notice  that,  unless  a  good  and  market- 
able title  were  shown  and  made  out  within  five  weeks  he 
would  treat  the  contract  as  at  an  end,  the  notice  was  held 
held  unreasonable  and  bad.  (A) 

§  10$lo.  But  where  a  vendor  has  previously  refused  to 
remove  an  objection,  a  time  which  would  be  unreasonably 
shcn-r  in  the  iirst  instance  for  the  removal  of  it  may  tlien 
become  a  reasonable  iDeriod,  after  which  the  purchaser  nvdy 
treat  the  contract  as  rescinded.r/) 

§  1060.  Again,  where  a  noti«e  to  rescind  was  waived  in 
case  evidence  requisite  to  prove  the  title  was  produced  im- 
mediately, the  evidence  not  having  been  produced,  the  bill 
was  dismissed.(/) 

§  1067.  And  the  nature  of  the  contract  rendering  expe- 
dition obligator}^,  may  make  reasonable  a  notice  Avliich 
would  otherwise  be  too  short.  Thus,  where  A.  agreed  to 
grant  B.  a  mining  lease,  and  for  that  purpose  undertook  to 
buy  a  held  adjoining  his  own,  to  procure  an  assignment  of 

{d)  King  V.  Wilson.  G  Beav.,  124;  but  see  (No.  1),  32  Beav  .  408,  affirmed  33  L.  J.  Ch  . 

Jtacbiyde  v.  Weekes,  2G  Beav.,  533;  supra,  §  44,  11  \V.  &  ,  8)2;  Oirecu  v.  seviu,  Crawlord 

1055  V.  Tuogood,  ubi  supra 

(e)  Crawlord  v.  Toogood,  13  Ch.  D.,  153.  (//)  McMurray  v.  Spicor.  L.  R.  5  Eq.,  527. 

(/)   Pcgg  V.  Wisden.  IG  Beav.,  2;J9.  (i)  Nott  v.  iliccard.  22  lieav.,  307. 

{g)  Parkin  v.  Th..rold,  16  Keav  ,  59  (of  S.        (j)  Stewart  v.  Smith,  G  Ua.,  22i  n.  (Leach, 

C,  2  Sim.  N.  S.  1).  .See  too  Wells  v.  Maxwell  V.  C.) 

1  Brashier  v.  Gratz,  4  Wheat  ,  .528;  Rogers  v.  Saunders,  16  Me.,  93;  Hatch 
V.  Cobb,  4  .lohu.,  ooU;  Bunuiugtoa  v.  Israel,  7  Ohio,  97,  aud  Jacksou  v.  Logau, 
3  Leigh,  161,  are  all  cases  to  tlie  ell'ect  that  a  vendor  may  determine  the  con- 
tract by  an  express  notice  that  he  will  consider  it  at  an  end,  unless  the  default 
of  the  vendee  be  made  good  by  an  immediate  jiayment;  but  Higbj'  v.  Whitaker, 
8  Ohio.  I!l8,  is  an  authority  to  the  effect  that  the  contract  may  be  thus  deter- 
mined, without  notice,  and  when  the  presumption  of  abandonment  is  repelled 
by  actual  possession. 


524        FRY  ON  SPECIFIC  PERFOKMANCE  OF  CONTRACTS. 

a  term,  and  do  further  acts  requiring  time,  and  nine  weeks 
elajjsed  from  tlie  contract  without  any  communication  from 
A.  to  B.  to  show  when  the  contract  was  likely  to  be  com- 
jjleted,  and  B.  then  cave  A.  notice  to  complete  within  one 
calendar  month,  and  in  default  to  rescind  the  contract ;  it 
was  held  that  the  nature  of  the  subject-matter  of  the  con- 
tract rendered  expedition  on  the  part  of  the  lessor  essential, 
and  that  the  month's  notice  was  reasonable. (/»:) 

§  1068.  The  notice  to  engraft  time  into  the  contract  must 
be  distinct,  and  unequivocal :  thus,  a  notice  that  one  party 
would  consider  the  non-performance  by  a  certain  day  as 
equivalent  to  a  refusal  to  perform,  was  held  not  to  amount 
to  a  notice  that  the  contract  would  then  be  considert^d  as 
rescinded.  (?)  The  notice  should,  for  certainty,  be  confined 
to  the  next  act  to  be  done  by  the  party  to  whom  it  is  given  ' 

§  1069.  It  does  not  appear  to  be  necessary  that  the  notice 
should  be  in  writing :  for  this  purpose  statements  made  by 
the  purchaser's  agent  at  the  time  of  signing  the  contract,  to 
the  effect  that  time  was  essential,  were  in  one  case  admitted 
as  evidence,  (m) 

3.  Lapse  of  time  constituting  ladies  or  emdencing  ahan- 
donmenl'  of  contract. 

§  1070.  The  Court  of  Chancery  was  at  one  time  inclined 
to  neglect  all  consideration  of  time  in  the  specific  perform- 
ance of  contracts  for  sale,  not  only  as  an  original  ingredient 
in  them,  but  as  affecting  them  by  way  of  laches.  (^0  But 
it  is  now  clearly  established,  that  the  delay  of  either  i)arty(o) 
in  not  performing  its  terms  on  his  part,  or  in  not  prosecu- 

(fc)  Macbryde  v.  Weekes,  22  Beav.,  .533.  fendant.    Whether  this  makes  a  difference,. 

(I)  It'^ynolds  v.  Nel.son,  6  Mad.,  18.  query.    See  per  Knight  Bruce,  V.  0  ,  458. 

{m)  Nokes  v.   Lord  Kilmorey,   1  De  G.   &  (n)  See  supra,  §  l(i46. 

Sm.,  444.    In  that  case  the  purchaser  was  de-  (o)  Rich  v.  Gale,  24  L.  T.  (N.  S.),  745. 

1  Demand  of  performance  before  action  for  specific  pejfoj'mcmce.]  The  court 
said  lu  >bvets  v.  Andrews,  2  Blaclvl,  27-4,  that  a  demand  for  conveyance  "is 
hest  calculated  to  .secure  the  specific  execution  of  contracts,  and  to  prevent  a 
multiplicity  of  suits.  Besides,  it  may  be  often  a  convenience  to  the  purchaser, 
for  a  variety  of  reasons,  not  to  receive  the  title  as  soon  as  he  is  entitled  to  it; 
and  he  may,  therefore,  prefer  its  continuance  for  some  time  in  the  vendor.  If 
lie  can  obtain  the  title  to  which  he  has  a  right  whenever  he  may  choose  to  de- 
mand it,  he  ought  not  to  complain."  See,  also,  Hubbell  v.  Van  Schoening,  49 
N.  Y.,  o2(J;  Delavan  v  Duncan,  id  ,  485;  Gall  v.  Archer,  42  Barb.,  3---*0;  AVnght 
V.  Le  Clain,  4  Green  (Iowa),  420;  Kimble  v.  Tooke,  70  111.,  55o:  Crabtree  v. 
Leviugs,  5o  id.,  52(5;  Walker  v.  Douglass.  73  id.,  445;  Brown  v.  Hart,  7 
Blackf.,  429;  Bowen  v.  Jackson,  8  id.,  203;  Mather  v.  Scoles,  35  Ind.,  1;. 
Fairbanks  v.  Dow,  6  N.  H.,  2(36. 


THE   LAPSE   OF   TIME.  525 

ting  his  right  to  tlie  interference  of  the  court  by  the  institu- 
tion of  an  action,  or,  Lastly,  in  not  diligently  prosecuting  his 
action  when  instituted, (^)  may  constitute  such  laches  as 
will  disentitle  him  to  the  aid  of  the  court,  and  so  amount, 
lor  the  purpose  of  specific  performance,  to  an  abandonment 
on  his  part  of  the  contract.' 

{p)  Moore  V.  Blake,  1  Ball  &  B.,  62. 

'  Courts  of  equity  will  not  aid  in  enforcing  stale  demands,  where  the  party 
has  been  guilty  of  negligence,  and  has  slept  upon  his  rights.  Piatt  v.  Vattier, 
9  Pet.,  4Uo;  Hawley  v.  Cramer.  4  Cow.,  717;  e'olemau  r.  Lyne,  4  Rand.,  4:j4; 
Johnson  v.  Johnson,  5  Ala.,  90;  Atwater  v.  F<>wler,  1  Edw  Ch  ,  417;  Rich- 
ardson V.  Baker,  5  Call,  514;  Craig  v.  Leiper,  2  Yerg.,  198.  But  it  is  said  that 
lapse  of  time  is  permitted  in  equity  to  defeat  an  acknowledged  right,  only  on 
the  ground  of  raising  a  presumption  that  the  right  has  been  abandoned;  and 
this  presumption  will  never  prevail  against  opposing  facts  and  circumstances 
outweighing  it.  Nelson  v.  Carrington,  4  Munf.,  yj2;  Reardon  v.  Seary,  1 
Litt. ,  53.  And,  in  Ohio,  lapse  of  time  is  no  bar  to  a  claim  where  an  action  of 
debt  would  not  be  barred  by  the  statute  of  limitations.  Fahs  v.  Taylor,  10 
Ohio,  !04;  See  Larrone  v.  Beam,  id.,  498  It  seems  clear,  that  where  nothing 
is  to  be  done  by  one  to  entitle  him  to  specific  performance  of  a  contract,  lapse 
of  time  does  not  constitute  a  defense  by  him  to  a  bill  for  that  purpose,  as  in 
case  of  a  bond  conditioned  to  make  title  as  soon  as  the  obligor  shall  get  one. 
Koen  V.  White,  Meigs,  358.  And  delaj^  amounting  even  to  apparent  negli- 
gence, maj',  it  would  appear,  be  explained:  and  uuder  special  circumstances, 
as  where  there  is  a  difhculty  about  the  title,  it  presents  no  bar  to  relief  in 
equity.  King  v.  Morford,  Saxton,  274;  Aj'lett  v.  King,  11  Leigh,  480;  Nelson 
V.  t'arrington,  4  Munf.,  332;  see,  also,  CouLson  v.  Walton,  9  Pet.,  62.  Thus, 
the  coverture  of  a  female  complainant,  during  a  great  portion  of  the  time  of 
delay,  is  a  circumstance  accounting  for  and  excusing  the  delay.  Baker  v. 
Morris,  10  Leigh,  284.  In  Tate  v.  Greenlee,  2  Hawks,  486,  where  the  com- 
plainant w^as  married  in  her  infancy,  but  immediately  on  the  death  of  her  hus- 
band, asserted  her  rights,  although  thirty-five  years  after  the  cause  of  her 
complaint  had  accrued,  the  same  doctrine  was  repeated,  and  her  bill  sustained. 
See,  also.  Falls  v.  Torrance,  2  Hawks,  490.  Again,  where  a  turnpike  company 
contracted  for  the  purchase  of  land,  and  took  possession  and  occupied  the 
land,  for  the  purposes  of  the  company,  twenty-three  years,  the  contract  was 
specifically  enforced  at  the  instance  of  the  company.  New  Barbadoes  Toll 
Bridge  v.  Vreeland,  3  Green's  Ch.,  157.  Upon  these  same  grounds  was  based 
the  decision  in  Craig  v.  Leiper,  2  Yerg.,  193.  In  that  case  the  importance  of 
promptitude  was  acknowledged,  but  it  was  considered  sufiicient  explanation 
tBat  a  part  of  the  delay  had  been  occasioned  by  the  mutual  agreement  of  the 
parties,  and  the  residue,  with  the  exception  of  three  j^ears,  by  the  in.sanity  of 
the  complainant's  ancestor  who  made  the  contract.  The  bill  was  sustained, 
notwithstanding  a  delay  of  thirty  years.  Poverty,  however,  is  no  excuse. 
Perry  v.  Craig,  3  Miss.,  316. 

Rule  tchere  there  lias  been  considerable  delay. '\  In  such  a  case  either  party? 
when  asking  specific  performance,  must  satisfy  the  court  that  during  the  whole 
time  he  was  ready,  and  intended  to  fulfill ;  and  that  the  delay  was  not  in  order 
to  take  advantage  of  a  possible  change  in  value  of  the  property.  Tiernan  v. 
Roland,  15  Pa.  tSt.,  429;  see,  also,  O'Fallon  v.  Kennerly,  45  Mo.,  124. 

Considerable  cliamje  in  value  of  the  property  pending  delay. 1  The  parties  will 
be  left  to  their  remedy  at  law,  where  they  cannot  be  placed  in  the  situation 
which  they  would  have  occupied  had  the  contract  been  originally  carried  out, 
and  the  value  of  the  property  is  ma'^'^'-'^ilv  changed.  Boston  R.  R.  Co  v.  Bart- 
lett,  10  Gray,  384;  Brashier  v.  Gratz,  6  Wheat.,  528;  McKay  v.  Carrington,  1 
McLean,  50;  Demorest  v.  ilcKee,  2  Grant's  Pa.  Gas.,  248;  Finch  v.  Parker,  49 
N.  Y.,  I;  Delavan  v.  Drum,  49  id.,  485;  Peters  v.  Delaplane,  id.,  362;  Cluner 
V.  Saratoga  Co.  Bank,  47  How.  Pr.,  376;  Callen  v.  Ferguson,  29  Pa.  St.,  347; 


526         FRY  ON  SPECIFIC  PERFOR:\rANCE  OF  CONTRACTS. 

§  1071.  One  of  tlie  earliest  cases  tending  to  establisli  tliis 
principle  was  Mackreth  v.  Marlar(7)  before  Lord  Kenyon, 
M.  R. :  Lord  Loiighboroiigli  followed  it,  and  held  in  one 
case  where  a  vendor  delivered  no  abstract  on  or  before  the 
day  for  completion,  nor  till  after  an  action  for  the  deposit, 
and  the  purchaser  had  demanded  back  his  dejDosit  at  the 

(q)  1  Cox,  259. 

Pickerinii'  v.  rickeriug,  88  X.  H.,  400;  Ruckiiian  v.  Cing;  19  N,  J.  Eq.,  360; 
Jobus  V.  Norris,  22  id.,  102;  Pratt  v.  Carroll,  8  Crancli,  471;  Roby  v.  Cassitt, 
78  111.,  G;]8;  Jackson  v.  Edwards,  22  Wend.,  498. 

Excuse  fo?-  delay  on  the  part  of  tlie  veiuUf.?^  Equity  will  not  refuse  its  aid  in  a 
case  where  tlie  vendee  has  made  delay  in  payments,  but  such  delay  has  not 
operated  injuiiously,  and  the  condition  of  the  parties  is  the  same  as  if  payment 
had  been  promptly  made;  particularly  where  a  reasonable  excuse  is  made  for 
the  default.  Loui:;\vorth  v.  Taylor,  1  McLean,  :)9o;  Spaulding  v.  Alexander,  6 
Bush  (Kv).  IfiO;  Penuock  v.  Ela,  41  N.  II..  191;  Morgan  v.  Scott,  2(1  Pa.  St., 
51;  Galla\^'ay  v.  Bau.  12  Ohio,  854;  Williston  v.  Williston,  41  Barb.,  G35; 
Trimble  v.  Elliott,  Wright,  810;  Farris  v.  Bennett,  2G  Tex.,  568;  Iluljble  v 
Van  Schoening,  49  N  Y  ,  o2(J;  Barnard  v.  Lee,  97  Mass.,  92;  Ewens  v.  Gor- 
don, 49  N  H.,  444.  In  Coulsou  v.  Walton,  9  Pet.  (U.  S.),  62,  it  was  held,  that 
in  a  case  where  the  complainant  had  made  no  default,  and  had  made  an  attempt 
to  enforce  his  agreement,  that  a  great  lapse  of  time  was  not  a  sufficient  bar  to 
prevent  a  court  of  equity  from  decreeing  specific  performance. 

Great  delay  uneicused,  laches.]  It  is  now  well-settled,  that  where  there  is 
great  unexplained  delay  on  tlie  part  of  any  of  the  parties  to  an  agreement, 
that  this  will  constitute  an  abandonment  of  the  same,  and  wili  amount  to  such 
laches  as  will  bar  a  court  of  equity  from  decreeing  specific  performance.  An 
unjustified  default  is  ecpiivalent  to  a  re.sci.sion.  Getchell  v.  Jewitt,  4  Me.,  350; 
King  V.  Hamilton.  4  Pet  ,  311 ;  De  Cardova  v.  Smith,  9  Tex.,  120;  Haughwort 
V.  Murphy,  2  K  J.  Eq.,  118;  jMnrgan  v.  Bergen,  3  Neb.,  209;  Vangant  v. 
Mayor  of  New  York,  8  iiosw.,  375;  Sarter  v.  Gordon,  2  Hill's  Ch.,  121;  Lud- 
low V.  Cooper.  13  Ohio,  552;  Grundy  v  Wilson,  Lift.  Sel.  Cas  ,  129;  Higby  v. 
Whittaker,  8  Ohio,  198;  Richardson V.  Baker,  5  Call.,  514;  Smith  v.  Hampton, 
13  Tex.,  459;  Hemphill  v.  Miller,  16  x\rk.,  2'\ ;  Lawrence  v.  Lawrence,  2  N.  J. 
Eq.,  317;  Miller  v.  Henlan.  51  Pa.  St.,  265;  Childress  v.  Holland,  3  Ilayw  , 
274;  Kerby  v.  Harrison,  2  Ohio  St.,  326;  Merritt  v.  Brown,  3  N.  J.  Hq.,  401; 
Maddox  v.  McQueen,  8  A.  K.  Marsh.,  400;  Gallon  v.  Ferguson,  29  Pa.  St., 247; 
Dubois  V.  Baum,  46  id.,  537;  Marston  v.  Humphrej',  24  Me,  513;  Shortall  v. 
Mitchell,  57  111  .  161;  Hough  v.  Coughlan,  41  id.,  131;  Hedenburgh  v.  Jones, 
73  111.,  148;  Taylor  v.  Merrill,  55  id.r52;  Fitch  v.  Harding,  73  id.,  114;  Alex- 
ander v.  Hoffman,  70  id.,  114;  Fitch  v  Willard,  73  id.,  92.  Where  the  ven- 
dor attempts  to  resell  the  property,  or  exercises  unequivocal  ownership  over  it 
unexplained,  this  will  imply  an  abandonment  of  the  contract.  Garnet  v. 
Macon,  6  Call.,  308.  An  action  for  specific  performance  was  held  to  be  based 
on  the  ground  that  the  delay  constituted  laches  Thirty-seven  years,  Ewing 
V.  Beauchamp,  6  B.  Monr.,  422;  thirty-four  years,  Tate  v.  Conner,  2  Dev.'s 
Eq. ,  224;  thirty  years,  Ritson  v.  Dodge,  33  Mich.,  463;  twenty  years,  Baird  v. 
Baird,  5  J  J.  Marsh.,  580;  Williams  v.  Hart,  116  Mass.,  518;  eighteen  years. 
Johnson  V.  Mitchell,  1  A.  K.  Marsh.,  225;  eight  years.  Brink  v.  Steadmau,  70 
111.,  241  In  Huffner  v.  Dickson,  2  Har.  6c  Johns.,  46,  twenty-seven  years 
was  held  to  be  no  bar  in  an  action  for  specific  performance. 

Specific  performance,  delay.]  A  party  bought  shares  in  a  corporation  from  a 
member  of  a  firm  and  received  an  authority  authorizing  a  transfer  on  the  books 
of  the  corporation.  The  seller  at  that  time  owned  a  large  number  of  shares. 
The  purchaser  delayed  for  several  months  in  applying  for  a  transfer  of  his 
shares,  and  during  the  delav  all  the  shares  owned  by  the  seller  were  sold  la 
other  parties,  who  obtained  transfers.  The  shai^es  had  in  the  meantime  risen 
in  value.    Held,  that  the  purchaser  could  not  in  equity  demand  that  a  member 


TPIE   LAPSE   OF   TIME.  527 

date  for  completion,  that  there  was  evidence  of  an  abandon- 
ment of  the  contract  by  the  vendor,  (r)  These  cases  were 
approved  by  Lord  Alvanley,  M.  E.  ;(5)  and  finally  the  doc- 
trine in  question  was  adopted  and  acted  on  by  Lord  Eldon : 
thus,  for  example,  in  one  instance  he  on  this  ground  dis- 
discharged  a  purchaser  under  a  decree,  error  having  been 
shown  in  the  decree,  though  the  i^arties  were  proceeding  to 
rectify  it.(^) 

§  1079.  The  doctrine  of  the  court  thus  established,  there- 
fore, is  that  laches  on  the  part  of  the  plaintiff  (v/hether 
vendor  or  purchaser),  either  in  executing  his  i)art  of  the 
contract  or  in  applying  to  the  court,  will  del^ar  him  from 
relief.  "A  party  cannot  call  upon  a  court  of  equity  for 
specific  iierformance,"  said  Lord  Alvanley,  M.  ^.,{u) 
''unless  he  has  show^i  himself  ready,  desirous,  prompt  and 
eager;"  or,  to  use  the  language  of  Lord  Cranworth,(«) 
"specific  performance  is  relief  which  this  court  will  not 
give,  unless  in  cases  where  the  parties  seeking  it  come 
promptly,  and  as  soon  as  the  nature  of  the  case  will 
permit,  "(^o) 

§  14^7S.  Where  the  contract  is  in  anywise  unilateral,  as, 

(r)  LlOYd  V.  Collett,  4  Bro.  C.  C,  469;  Har-  (v)  In  Eads  v.  Williams,  4  De  G.  M.  &  G  , 

rington  V.  Wheeler,  4  Ves  ,  686^  691. 

(s)  Fordyce  v.  Ford,  4  Rro.  C.  0.  494  (w)  See  also  Alley  v.  Deschamps,-13  Ves., 

(<)  Lochmf  re  v.  Brazier,  2  J    &  W  ,  287;  225;   Williams  v.   Williams,    17  Beav.,  213; 

Coster  V.  Turaer,  1  R    &  My.,  311.    See  also  Firth  v.  Greenwood,  1  Jur.  N.  S  ,  866  (VVood, 

Cubitt  V.  B  ake,  19  Beav.,  4.54.  V.  C.) ;  Mills  v.  Haywood,  6  Ch.  D.,  202. 

(w)  In  Milvard  v.   Earl   Thanet,   5  Ves., 
720  n. 

of  the  firm  who  sold  the  shares,  but  who  was  ignorant  of  the  trausactiou, 
should  deliver  shares  of  the  same  character  owned  by  him.  Held  further,  that 
the  purchaser  was  entitled  to  a  decree  for  the  amount  which  he  had  paid  for 
the  shares.     Winsom  v.  Fenno,  129  Mass.,  405. 

Example  of  great  delay.']  See  Holt  v.  Rogers,  8  Pet.  (U.  S.),  420.  And  where 
there  was  not  only  delay,  but  failure  of  proof.  Col  vert  v.  Nichols,  8  B.  Mon., 
264. 

Belay  by  consent.']  It  will,  of  course,  operate  as  a  defen.se  where  a  party  can 
show  that  the  delay  was  acquiesced  in,  or  that  the  other  party  has  accepted  a 
substitute  for  a  literal  performance.  Hutchinson  v.  McNutt,  1  Ohio,  14;  Koen 
V.  White,  Meigs  (Tenn.),  358;  Mitchell  v.  Long,  5  Litt.,  71. 

Example  of  waiver  of  paymend.  ]     The  vendee  of  real  estate  was  distinctly 
recognized  by  the  vendor  as  the  owner;  said  vendee  Avas  asked  to  refund  a' 
year's  tax  the  vendor  Lad  paid  for  the  year  subsequent  to  the  time  fixed  for  the 
completion  of  the  cbntract.     Held,  that  it  might  be  inferred  that  the  time  of 
pajnnent  was  waived.     Mix  v.  Baldne,  78  111.,  213. 

Waiver,  where  mere  Jiad  been  both  delay  and  depreciation.]  The  vrrdor  ac- 
cepted payment,  and  gave  a  receipt  for  the  same,  uotwithsiandir .;  U.;;e  iiad 
been  delay  as  to  a  portion  of  the  payment  and  depreciation  as  tc  value  He'd, 
that  the  del-iy  was  waived.  Hale  v.  Wilkin-?on,  21  Gratt.,  75.  This  case  ^  :;s- 
cited  and  followed  in  Ambrobe  v.  Keller,  22  Gratt.,  76".). 


528         FKY  ox  SPECIFIC  PEKFOKMANCE  OF  CONTRACTS. 

for  instance,  in  the  case  of  an  option  to  purchase,  a  right  of 
renewal,  or  of  any  other  condition  in  favor  of  one  party  and 
not  of  the  other,  tlien  any  delay  in  the  party  in  whose  favor 
the  contract  is  binding  is  looked  at  with  especial  strict- 
ness, (.t)  On  this  principle,  the  delay  of  a  purchaser  in 
deciding  whether  he  will  or  will  not  accept  the  title  is  an 
injustice,  because  tlie  purchaser  can  enforce  the  contract 
against  the  vendor  whether  the  title  be  good  or  bad,  whereas 
the  vendor  can  only  do  so  in  case  of  a  good  title.  (2/)' 

^  1074.'  So  where  a  railway  company  agreed  to  make 
such  crossings  as  the  landowner's  surveyor  should  wiihin 
one  month  direct  and  notify  in  writing  to  the  company  or 
their  engineer,  and  the  surveyor  did  not  give  any  such 
direction  or  notilication  until  after  the  expiration  of  the 
stipulated  time,  it  was  held  that  the  landowner's  right  to 
have  the  crossings  made  under  the  contract  was  lost. (2:) 

§  1075.  But  where  no  time  has  been  oiiginally  limited 
within  which  a  tenant's  option  to  have  a  lease  must  be 
exercised,  and  the  landlord  has  never  called  upon  the  tenant 
to  declare  his  option,  mere  lapse  of  time  will  not  preclude 
the  tenant(a)  or  his  assignee(5)  from  exercising  it. 

§  1076.  Acquiescence  in  the  breach  of  a  covenant  will 
form  a  bar  to  its  specific  performance  in  equity,  (c) 

§  1077.  In  many  of  the  cases  there  has  been  a  general 
dilatoriness  in  all  the  proceedings,  so  that  it  is  almost 
impossible  to  state  briefly  the  actual  amount  of  delay  which 
has  been  considered  to  bar  the  plaintiif '  s  right  to  relief  :  but 
some  notion  of  the  present  doctrine  of  the  court  on  this 
point  will  be  gained  from  the  following  cases." 

(X)  Allen   V.    Hilton,    1    Fonbl.   Eq.,  432;  (y)  Spurrier  v.  Hancock,  4  Ves.,  667,  673- 

Brooke  V  Garrod,  3  K.  &  J  ,  62;  Lord  Raue-  673 

lagh  V.  Melton,  2  Dr.  &  Sm.,  27S;  Weston  v.  («)  Earlof  D  rnley  v.  London,  Chatham 
Collhis,  13  W.  R,510.    Distinguish  Ward  V.  and  Dover  Railway,  1  De  G.  J.   &S.,204,  3 
Wolverhampton    Waterworks  Co.,  L.  II.  13  ib.  24,  L.  R  2  H.  L  43. 
Eq.,  243,  and  see   Austin  v.   Tawney,  L.  R.  2  (a)  Moss  v.  Burton,  L.  R.  1  Eq.,  474. 
Ch.,  143,  where  the  necessity  of  strict  com-  (6)  Buckland  v.  FaplUon.  L.  K.  2  Ch.,  67. 
pliance  with  the  terms  of  option  as  to  time  (c)  Harrett  v.  Blagrave,  6  Ves.,  104. 
was  recognized,  and  held  to  have  been  satis- 
fled.  

'  See,  also,  Lloyd  v.  Collet,  4  Bro.  C.  C,  469;  HarriDgton  v.  Wheeler,  4  Ves., 
C86;  Guest  v.  Ilomfray,  5  id.,  818;  Walker  v.  Jeffreys,  1  Ha.,  352;  Southcomb 
V.  Bishop  of  E.xeter,  6  id.,  213;  Doriu  v.  Hawey,  15  Sim.,  49. 

-  Option  to  jyurchase-l  In  such  a  case,  delay  on  the  vendee's  part  will  be  re- 
garded with  suspicion.  The  conduct  of  the  party  claiming  ^he  benefit  of  such 
a  contract  will  be  closely  scaned,  and  the  court  will  exercise  its  discretion  with 
great  care.  Allen  v.  Hilton,  1  Fonbl.  Eq.,  432;  Brooke  v.  Gauod,  27  L.  J. 
Ch.,  226;  Estes  v.  Furlong,  59  111.,  298. 

Vendor's  delay  in  giving  deed.']     A  vendor  failed  to  make  title  for  an  unrea- 


THE   LAPSE   OF   TIME.  529 

§  1078.  In  the  oldest  case  of  The  Marquis  of  Hertford  v. 
Boore,(<:Z)  a  delay  of  fourteen  months  was  not  considered  a 
bar  to  the  plaintiff' s  bill.  But  in  the  comparatively  recent 
€ase  of  Eads  v.  Williams, (e)  where  the  contract  was  for  the 
lease  of  a  coal  mine,  a  delay  of  three  and  a  half  years  was 
considered  fatal :  in  Southcomb  v.  The  Bishop  of  Exeter,(/) 
a  delay  from  the  17th  of  January,  1842,  to  the  30th  of 
August,  1843,  was  held  to  have  the  same  effect :  and  in  Lord 
James  Stuart  v.  The  London  and  North-western  Railway 
C".,(^)  Knight  Bruce,  L.  J.,  seemed  to  think  that  a  delay 
from  October,  1848,  to  July,  1850,  must  be  fatal  to  such  a 
bill.' 

§  107t>.  Where  one  j^arty  to  the  contract  has  given  notice 
to  the  other  that  he  will  not  perform  it,  acquiescense  in  this 
by   the   other  party,   by   a  comparatively   brief   delay   in 

(d)  5  Ves  ,  711).  Wheeler,  4  Ves.,  686;   Guest  v.   Horn  fray,  5 

le)  4  De  G.  M.  &  G.,  674;  cf.  supra,  §  1052.  Ves.,  818;  Thomas  v.   Blackman,  1  Coll.,  301, 

(/")  6  tla.,'213.  313;  Sharp   v.  Wright,  28  Biav.,  150;   .MOore 

(g)  1  DeG.  M.  &  G.,721;  and  see  also  Spur-  v  Marrable,  L.  R.  1  Ch.  217. 
rler  V,   Hancock,  4  Ves.,  667;   Harrington  v. 

sonable  time,  aud  not  until  an  action  had  been  commenced  to  recover  back  the 
purchase  money  paid.  Held,  that  where  no  material  change  of  circumstances 
was  shown,  such  vendee  was  not  entitled  to  relief.  Anderson  v.  Fry,  18  111., 
94;  Pratt  v.  Carroll,  8  Cranch,  471;  Cadwalader's  App  ,  57  Pa.  St.,  153;  Tay- 
lor v.  Porter,  1  Dana,  421;  Watts  v.  Woddle,  6  Pet.,  3S9;  Harris  v.  Kidwell, 
7  J.  J.  Marsh.,  382. 

Unreasonable  delay.  ]  The  court  will  not  decree  specific  performance  of  a 
contract  in  favor  of  a  party  who  has  unreasonably  delayed  the  fulfillment  of 
his  part  of  the  contract.     Jones  v.  Jones,  11  Phila.  (Pa.),  559. 

'  In  Strickland  v.  Fowler,  1  Dev.  &  Bat.'s  Ch.,  629,  a  delay  of  nine  years, 
unexplained,  was  held  a  bar  to  a  suit  for  specific  performance  of  a  contract  for 
the  delivery  of  slaves.  In  Randolph  v.  Ware,  8  Cranch,  503,  a  delay  of  tliirty 
jears  was  held  to  be  fatal.  In  Atkin.son  v.  Robinson,  9  Leigh,  398,  twenty- 
seven  years  was  thought,  when  spent  in  sleeping  on  their  rights,  sufficient  to 
preclude  relief.  In  Barett  v.  Emerson,  6  Monr.,  607,  twenty  years'  delay  was 
held  to  constitute  laches.  In  Caruthers  v.  Trustees  of  Lexington,  12  Leigh, 
610,  a  lottery  was  authorized  in  lb02,  and  the  funds  realized  were  expended  by 
1809,  most  of  them  passing  through  the  hands  of  the  treasurer,  who  died  in  ISIk 
In  1830  a  bill  was  filed  by  parties  interested,  against  the  repiesentatives  of  the 
treasurer,  for  an  account,  aud  the  court  refused  to  entertain  the  bill,  on  the 
ground  that  it  was  a  stale  claim.  And  in  McMillin  v.  Milliu,  7  Monr.,  560,  a 
lapse  of  five  years  was  held  to  bar  a  bill  in  equity  for  the  specific  performance 
of  a  parol  contract  for  the  sale  of  land,  of  which  the  plaintifl"  had  not  held  pos- 
session. But  in  Osborne  v.  Bremar,  1  Dessau  ,  486,  a  delay  of  three  years  in 
making  title,  by  a  vendor  of  land,  was  held  to  be  no  answer  by  him  for  specific 
performance  of  the  contract  of  sale.  In  Burrows  v.  McWhann,  1  Dessau.,  409, 
a  surety,  six  years  after  the  death  of  his  co-sur  ^y  pnicl  the  debt,  and,  nearly 
two  years  afterwards,  demanded  contribution  of  the  administrator  of  his  co- 
suritJ^  Held,  that  the  claim  was  not  barred  by  lapse  of  time,  the  administrator 
having  made  no  payments  Jn  the  mean  time  except  to  himself.  In  Kinna  v. 
Smith,  2  Green's  Ch.,  14,  the  lapse  of  twelve  years,  without  payment  of  interest, 
was  not  thought  to  make  a  stale  demand.  In  Glenn  v.  Hebb,  12  Gill.  &  J.,  271, 
where,  in  1821,  one  partner  was  intrusted  with  the  winding  up  of  the  partner- 

34 


530        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

enforcing  liis  right,  will  be  a  bar :  so  that,  in  one  case(70 
two  years'  delayin  iiling  a  bill  after  such  notice,  in  another 
case(/)  one  year's,  and  in  a  third(i )  (where  the  contract  was 
for  a  lease  of  collieries)  five  months'  like  delay  were  held  to 
exclude  the  intervention  of  the  court. 

4.    Whe?'e  time  does  not  run. 

§  1080.  Where  the  contract  is  substantially  executed, 
and  the  pkiintiif  is  m  iDossession  of  the  property,  and  has 
got  the  equitable  estate,  so  that  the  object  of  his  action  is 
only  to  clothe  himself  with  the  legal  estate,  time  either  will 
not  run  at  all  as  laches  to  debar  the  plaintiff  from  his  right, 
or  it  will  be  looked  at  less  narrowly  by  the  court  ;(A-)  for  the 
plaintiff  has  not  been  sleeping  on  his  rights,  but  relying  on 
his  equitable  title,  without  thinking  it  necessary  to  have  his 
legal  right  protected.  (Z). 

§  1081.  Therefore,  where  a  tenant  holds  under  a  con- 
tract for  a  lease,  pays  his  rent,  and  has  possession  of  the 
property  and  the  enjoyment  of  all  the  benefits  given  him 
by  the  contract,  the  effluxion  of  time  will  not  be  a  ground 
for  resisting  its  enforcement  :(m)  and  so,  where  there  was  a 
contract  for  the  lease  of  a  shop  and  the  sale  of  the  stock, 
and  the  stock  had  been  paid  for,  the  plaintiff  had  been  put 
into  possession  as  lessee,  and  the  rent  had  been  paid,— in 
fact,  everything  had  been  done  but  the  execution  of  the 
lease,  which  the  defendant  had  refused  to  execute  on  a 
ground  which  was  untenable,— specihc  performance  of  the 
lease  was  granted,  notwithstanding  considerable  laches  on 

ih)  Heaphy  v  I]  ill  2  S.  &  S.,  29.  (k)  Per  Lord  Rosendale  InJCrofton  v.  Orms^ 

(i^  ^Vat^<>n  v.Reid,  i  R   &   Mv.,  236.    See,  by.  a  ^ch.  &  Lef  ,  604. 

alBO  per  Lord  Romilly,  M.  R  .  in  Parkin  v.  {1}  See  Cartan  v.  Bury,  10,^  Ir.  Ch.  R.,  395; 

Thorold  16  Beav  ,  73.  and  Lehmann  v.  Ale-  Homan  v.  Sbelton,  11  Ir  <  h   R.,  96. 

Arthur  L  R  3  Cti  ,  49«.  iwi)  Clarte  v.   Moore,  1  Jon.   &    L..  723; 

(j)  Huxhani  v    Llewellyn,  21  W.  R.,  570,  Sliarp  v.  Milligan.22  Reav.,6C6  (affirmed  by 

766      See  too  Glasbrook  V  Richardson,  23  W.  theL.  J.  J.);  Shepheard  v.  Walker,  L.  R.  20- 

L.,  51  (delay  ofS  months  and  13  days).  Eq.,  659. 


ship  concerns,  at  an  annual  salary,  and  in  1825  the  other  partner  died,  but  ad- 
ministration was  not  taken  out  until  1832,  and  the  administrator  filed  a  bill  for 
an  account  against  the  surviving  partner  in  1837,  it  was  held  that  the  right  to- 
an  account  was  not  barred  by  lapse  of  time.  In  Maryland,  tbe  lapse  of  twenty- 
seven  years  is  no  bar  to  a  bill  for  the  specific  performance  of  a  contract.  Hatf- 
ner  v.  Dickson,  2  Har.  &.  J.,  46.  And  in  South  Carolina,  it  would  seem  that 
the  court  of  chancery  had  established  the  rule  that  it  will  not  interfere,  unless 
under  very  special  circumstances,  to  interpose  lapse  of  time  as  a  bar  to  a  claim^ 
unless  excluded  by  the  statute  of  limitations.     Gi.st  v.  Cattell,  2  Dessau.,  53. 


THE   LAPSE    OF   TIME.  631 

tlie  part  of  the  plaintiff  subsequent  to  tlie  defendant's  refu- 
sal, but  therefore  without  costs. (ti)' 

§  10S2.  But  possession,  to  save  a  purchaser  from  the 
usual  consequence  of  delay,  must  be  possession  under  the 
contract  sought  to  be  enforced,  and  the  vendor  must,  have 
known  or  have  been  bound  to  know  that  the  purchaser 
claimed  to  be  in  posession  under  the  contract.  Accordingly 
in  a  case  where  the  tenant  of  a  tavern,  with  an  option  of 
purchasing  it  during  his  term,  duly  gave  notice  that  he 
elected  to  purchase,  but  after  some  correspondence  allowed 
the  subject  to  drop,  and  then  for  upwards  of  five  years 
remained  in  possession  without  ever  insisting  on  the  effectu- 
ation of  the  purchase,  and  from  time  to  time  making  pay- 
ments to  the  lessor"  s  mortgagee  for  most  of  which  he  took 
receipts  ex[)ressing  them  to  be  for  rent,  it  was  held  by  the 
Court  of  Ai:^i3eal  that  his  possession  had  not  been  such  as  to 
prevent  his  delay  being  fatal  to  his  claim  for  sx)ecific  per- 
formance, (o) 

§  1083.  Nor  will  time  run  as  laches  pending  a  negotia- 

(n)  Burke  v.  Smytn.  3  Jon.  &  L.,  193.    See,    Brophy  v.  Connolly,  7  Ir.  Ch.  R  ,  177;  Finu- 
also,  per  I.ord  St.   Leonards  iu  Rklgwav  v.    cane  v.  Turner,  13  Ir  Ch.  K.,  488,  494. 
Whaiton,  6    H    L.    C,   292;    and    consider        (o)  Mills  v.  Haywood,  6  Ch.  D.,  196. 


1  It  seems  to  be  well  established,  in  this  country,  that  lapse  of  time  is  no  ob- 
jection to  a  specific  performance  of  a  contract  to  convey  land,  where  the  per- 
son originally  entitled  to  the  conveyance,  and  those  claiming  under  him,  have 
been  in  uninterrupted  possession  of  the  land.  Miller  v.  Bear,  3  Paige,  466; 
Longworth  v.  Taylor,  1  McLean,  395,  is  a  case  of  this  nature.  There  A.  pur- 
chased a  lot  of  land  from  B.,  paying  one-third  of  the  price  and  taking  posses- 
sion. B.  agreed  to  give  a  deed  in  three  mouths,  and  A.  to  give  a  mortgage  to 
secure  the  balance  of  the  price,  which  was  payable  in  six  and  twelve  months. 
B.  did  not  make  a  deed,  nor  did  A.  pay  the  second  installment,  but  payment 
was  suspended  on  an  agreement  that  interest  should  be  paid  instead.  A.  elected 
buildings  on  the  lot,  but  on  learning  that  the  title  was  contested,  he  withheld 
any  further  paymeuls  in  1810.  B.  recovered  possession  in  1822,  in  an  action 
of  ejectment.  In  1825,  A.  filed  a  bill  for  specific  performance.  Held,  that 
the  parties  might  be  considered  as  mortgagor  and  mortgagee,  as  the  defendant's 
default  had  prevented  them  from  occup\  ing  that  position  in  law ;  that  the 
plaintiiT's  equity  was  not  extinguished  by  lapse  of  time,  and  that  he  had  not 
been  guilty  of  such  negligence  as  to  cut  off  liis  right  to  a  decree  for  perform- 
ance. So,  in  Waters  v.  Travis,  9  John.,  450,  where,  by  a  contract  for  the  sale 
of  land,  the  vendor  Avas  to  convey  at  a  time  specified,  and  the  vendee  was,  "at 
the  same  time,"  to  secure  the  purchase  money,  and  the  vendee  took  possession 
under  the  contract,  but  no  conveyance  was  executed,  and  the  purchase  money 
was  not  paid  for  fifteen  years,  it  was  held  that  the  lapse  of  time  was  no  objec- 
tion to  a  decree  for  specific  performance  at  the  suit  of  the  vendee.  And  again, 
where  A.,  the  owner  ol'  a  survey  in  1774,  agreed  to  convey  a  portion  thereof  to 
B.,  who  took,  tiud  held,  pos.session  of  sucli  portion  until  1822,  when  A.  never 
having  assigned  bis  right  to  .such  land  to  B.,  nor  himself  obtained  a  grant,  and 
having  died,  his  devisee  obtained  a  grant  of  the  whole  survey,  it  was  held 
that  the  Irpce  (  '  *'iT.e  was  not  a  bar  to  a  bill  by  B.  against  the  devisee  for  a 
specific  performanLe  of  A.'s  contract.     Williams  v.  Lewis,  5  Leigh,  G86. 


532        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

tion  between  the  parties  to  the  contract,  even  though  it  may 
be  carried  on  without  prejudice  to  a  notice  given  by  one 
party  that  he  hokls  the  contract  rescinded. (i?)  But  where 
the  negotiation  is  about  a  point  whicli  is  not  the  real  cause 
of  the  delay,  its  pendency  will  not  prevent  the  effluxion  of 
time  operating  as  laches:  so  where  there  were  two  pur- 
chases, and  disputes  arose  about  the  title  and  a  valuation 
incident  to  the  purchase,  but  from  the  evidence  it  appeared 
that  want  of  means  in  the  purchaser  who  had  instituted  the 
suit,  and  not  these  disputes,  was  the  real  cause  of  delay, 
Knight  Bruce,  V.  C,  though  after  some  hesitation,  refused 
specific  performance,  as  the  plaintiflf  in  such  suits  must  have 
more  tliat  ;i  doubtful  title. (g) 

§  1084.  When  the  delay  arises  from  an  untenable  objec- 
tion taken  by  one  party,  that  party  cannot  avail  himself  of 
the  delay  caused  by  it,  as  a  ground  for  the  non- performance 
of  the  contract. (?•)  And  generally,  whenever  the  delay  is 
attributable  to  the  defendant,  he  will  not  be  allowed  to  avail 
himself  of  it  as  a  defense.  (5) 

§  1085.  In  Lamare  v.  Dixon(i^)  an  intending  lessee,  rely- 
ing on  a  verbal  promise  by  the  owner  of  some  wine  vaults 
that  they  should  be  made  dry,  signed  a  written  conti-act  to 
accept  a  lease  of  the  vaults  at  a  specilied  rent,  and  went  into 
possession.  The  vaults  not  being  made  dry,  the  tenant 
constantly  complained,  and,  though  he  paid  rent,  always 
paid  it  under  protest ;  until,  finally,  after  having  actually 
occupied  the  vaults  for  upwards  of  two  years,  he  refused  to 
take  the  lease  on  the  ground  that  the  owner's  promise  had 
never  been  fulfilled.  The  House  of  Lords  held  that  the 
tenant' s  payments  were  referable  merely  to  his  actual  use 
and  occupation  of  the  premises,  that  such  payments  and 
possession  did  not  amount  to  such  acquiescence  as  to  debar 
the  tenant  from  defending  his  refusal  on  the  ground  of  the 
non-performance  of  the  i)romise  which  had  been  the  induce- 
ment to  the  contract,  and  that  the  owners  delay  and  con- 
duct in  the  matter  generally  disentitled  him  to  insist  on 
specific  performance  of  th^  contract;  but  the  house  con- 

(p)  Southcomb  V.  Bishop  of  Exeter,  6  Ha  ,  (s)  Morse   v.  Merest,  6   Mad.,  26;  Shrews 

213-  McMurray  v    Spicer,  L.  K.  5  Eq  ,  527;  bury  ami  Birmingham  llailway  (Jo.  v.  L,on 

and  cf    Lehman  V.  McArthur,  L.  R.  3Ch.,  don  ami  Xorth- Western  Railway  Co.,  2  Mac 

5Q4  &  G.  324,  355;  per  I>oril  St.  Leonards  in  Jiidg 

(a)  Gee  v  Pearse,  2  De  G.  &  S.,  325.  way  v.  Wharton,  C  11    L.  C,  292. 

(r)  Monro  v.  Taylor,  3  Mac.  &  G.  713,  723.  (t)  L.  K.  6  H.  L  ,  414. 


THE   LAPSE   OF  TIME.  533 

sidered  the  delay  which  had  occurred  so  chargeable  to  both 
parties  that  the  bill,  though  dismissed,  was  dismissed  with- 
out costs. 

§  10S6.  The  fact  that  the  purchaser  has  allowed  the 
deposit  to  remain  in  the  hands  of  the  vendor  from  the  time 
when  the  former  rescinded  the  contract  until  the  filing  of 
the  bill  has  been  decided  not  to  affect  the  question  of 
laches.  (?/) 

§  1087.  So  also  continuing  in  possession,  if  under  an 
arrangement  to  that  effect,  will  not  affect  the  question. («) 

§  1088.  In  a  case  already  referred  to  Lord  Romilly,  M. 
R.,  expressed  the  opinion  that  time  does  not  run  as  laches 
in  the  case  of  land  taken  under  a  railway  act,  until  the  time 
during  which  the  company  had  the  power  to  make  the  rail- 
way ceased,  as  the  fact  whether  the  company  would  require 
the  land  or  not  could  not  be  ascertained  until  that  time  •,{w) 
but  this  view  was  not  adopted  by  Knight  Bruce  and  Lord 
Cranworth,  L.  J.  J.,  who  seem  to  have  thought  that  time 
would  run  from  the  date  of  the  contract. 

§  1089.  It  is  to  be  observed  that  a  mere  claim  or  protest 
by  words  or  letters,  tliough  continual,  unaccompanied  by 
any  act  to  give  effect  to  them,  will  not  prevent  time  operat- 
ing as  laches  against  the  party  making  the  claim,  nor  keep 
alive  a  right  which  would  otherwise  be  precluded. (^) 

5.    Waiver  of  delay. 

§  1090.  Objections  grounded  on  lapse  of  time  are  waived 
by  a  course  of  conduct  inconsistent  with  the  intention  of 
insisting  on  such  an  objection :  and  in  this  respect  it  is 
immaterial  whether  time  were  originally  of  the  essence  or 
subsequently  engrafted  on  the  contract. (?/)' 

§  1091.  Therefore,  where  a  title  is  in  a  state  which  may 
cause  delay,  or  a  good  title  has  not  been  completely  shown 
by  the  day  for  completion,  and  tlie  purchaser  goes  on  deal- 
ing about  the  title  after  that  day,  this  will  waive  his  right 

(t/)  Watson  V.  Reirt.l  R.  &  My.,  236;  South-  North-Westem  Railway  Co.,  15  Beav.,  513; 
comb  V.  lUshop  of  Ex.-ter,  6  Ha.,  213,  224.  S.  C.  1  De  G.  M.  A  G..  721. 

(r)  Southcomb  v.  Bishop  of  Exeter,  ubl  (a?)  ClepR  v.  Eilniondson,  S  De  G.  M.  &  G., 
supra.  787.  810;  Lehmann  v.  McArthur,  L.  R.  3  Ch., 

(MJ)  Lord  James  Stewart  v    Lomlon  and    490, 604. 

{!/)  King  V.  Wilson,  6  Beav.,  124. 

'  Specific  performance  will  be  decreed  against  a  party,  who,  by  bis  acts,  has 
waived  the  materiality  of  time.     Rector  v.  Price,  1  Mis.,  373. 


534        FRY  ON-  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

to  insist  on  the  time. (2)  So  the  examination  of  the  abstract 
after  the  time  will  prevent  a  defendant  insisting  on  time  as 
essential,  for  he  had  no  right  to  look  into  the  abstract  if  he 
meant  to  abandon  his  purchase,  (a)  And  such  conduct  will 
amount  to  a  waiver,  even  though  a  formal  notice  to  abandon 
the  contract  may  have  been  given.  (^>)  So  again,  insisting 
on  the  contract  after  the  time  limited  for  completion  is  an 
act  waiving  the  right  to  insist  on  that  time  as  essential. (c) 
But  where  a  purchaser  protests  against  delay,  and  then 
under  protest  deals  about  the  title,  this  will  not,  it  seems, 
amount  to  a  waiver.  ((^) 

§  1093.  As  a  general  principle,  a  stipulation  as  to  time 
cannot  be  bindingly  waived  otherwise  than  by  an  intentional 
act,  done  with  knowledge  of  all  material  circumstances.  Ac- 
cordingly, in  a  case  already  cited,  where  a  railwaj^  company 
agreed  to  do  certain  works  to  be  directed  by  the  award  of  a 
surveyor,  to  be  made  within  a  specified  time,  and  the  award 
was  not  made  within  that  time,  the  company  were  held  not 
to  have  waived  the  condition  as  to  time  by  having,  in  ignor- 
ance of  the  fact  that  the  award  was  made  late,  taken  it  up 
and  paid  the  surveyor's  charges  for  it.((?) 

§  1093.  Again,  as  to  time  for  jDayment :  where  an  assignor 
of  a  lease  insisted  on  a  forfeiture  of  the  assignment  by  reason 
of  non-payment  of  part  of  the  purchase  money  at  the  time 
stipulated,  he  was  held  to  have  waived  it  by  getting  the 
assignee  to  pay  the  rent  to  the  superior  landlord,  that  not 
being  consistent  Avitli  the  notion  that  the  agreement  was  at 
an  end.(/)  In  another  case  there  was  a  contract  that  if  the 
residue  of  the  purchase  money  was  not  paid  at  a  certain 
day,  the  contract  should  be  void :  it  was  not  paid,  but  the 
vendor,  allowing  the  i)urchaser  to  retain  possession  and 
taking  from  him  a  warrant  of  attorney  to  confess  judgment 
in  ejectment,  was  held  to  have  waived  the  condition. (^^) 

§  1094.  As  to  the  time  for  the  delivery  of  objections,  a 
subsequent  corsespondence  as  to  title  was  in  one  case  held 
to  work  a  waiver  :(7i)  and  a  similar  lesult  was  in  another 

(z)  Pincke  v.  Cxirtis.  4  Bro.  C.  C,  329.  and  Dover  Railway,  1  De  G.  J.  &  S.,  204,  3 

(a)  Seton  v.  Slarle,  7  Ves.,  265  id  24,  L.  K  2  H.  L.,  43. 

(b)  Hipwell  V.  Kniglit,  ]  Y.  &  C.  Ex  ,401.  (/)  Hudson  v.  P.artram,  3  Mjid.,  440;  Webb 

(c)  Pegg  V.  WiBden,  16  Beav..  239.  v.  Hughes.  L.  R.  10  Eq  ,  2S1. 

(d)  Magennis  v.  Fallon,  3  Moll.,  561,  576.        (q)  Ex  parte  Gardner,  4  Y.  &C.  Ex.,  5(3. 
But  see  St.  Leon.  Vend  ,  291.  (h)  Cutis  v.  Thodey,  13  Sim.,  206. 

(e)  Earl  of  Darnley  v.  London,  Cliatham 


THE   LAPSE   OF  TIME.  535 

case  held  to  follow  froiri  the  subsequent  renewal  of  negotia- 
tion as  to  price. (/)' 

§  1095.  So,  again,  taking  possession  after  the  default  as 
to  time  may,  it  seems,  i3reclude  the  objection  •.{j)  but  merely- 
giving  i)ossession  before  the  day  for  payment  has  arrived  is 
no  Avaiver  of  a  vendor's  right  to  insist  upon  payment  on 
that  day.  {Jc) 

§  1096.  The  mere  extension  or  giving  of  time,  where  time 
is  of  the  essence  of  the  contract,  is  only  a  waiver  to  the 
extent  of  substituting  the  extended  time  for  the  original 
time,  and  not  an  utter  destruction  of  the  essentiality  of  the 
time.  And  so  where,  by  the  terms  of  a  contract  for  the  sale 
of  the  benefit  of  a  building  contract,  a  moiety  of  the  price 
was  to  be  paid  on  a  specified  day,  and  the  vendors  after- 
wards by  letter  gave  the  purchaser  until  a  later  (named)  day 
to  make  the  payment,  but  the  money  was  not  paid  by  that 
day,  Jessel,  M.  R.,  held  that  time  was  originally  of  the 
essence  of  the  contract,  and  the  letter  only  a  qualified  and 
conditional  waiver  of  the  original  stipulation  ;  and  that, 
consequently,  the  vendors  were  entitled  to  treat  the  contract 
as  at  an  end.(Z) 

§  1097,  It  is  perhaps  scarcely  needful  to  remark,  that  a 
waiver  as  to  the  time  in  which  an  act  is  to  be  done,  is  not 
necessarily  in  any  degree  a  waiver  of  the  act  itself.  So  that 
where  it  was  agreed  that  A.  should  repair  some  warehouses 
by  the  first  of  April,  and  that  B.  should  then  take  a  lease  of 
them,  and  the  rej^airs  were  not  done  by  the  day  appointed, 
but  B.  continued  to  deal  in  a  way  which  was  held  to  amount 
to  a  waiver  of  the  time  as  essential  (if  by  the  contract  it  had 
ever  been  so),  and  afterwards  and  before  a  lease  was  execu- 
ted the  warehouses  were  burned  down  :  it  was  held  that  B., 
though  he  had  waived  the  essentiality  of  time,   had  not 

(i)  Elds  V.  Williams,  4  De  G.  M.  &  G.,  C74.  distinctly  dissented  from  the  view  expressed 

0")  IJochm  V.  Wood,  IJ  .  &  W.,  420.  by  LordKomilly,  M.  K.,  in  ParKin  v.  Thorold 

(k)  See  Barclay  V.  Messenger, 2-2  W.  II., 523.  (16  Beav.,  59),  as  to  the  eflVct  of  a  letter  ex- 

(i)  Barclay  v.  Alessenger,  22  W.  It.,  523;  43  tending  the  lime  for  completion. 
L.  J.  Ch.,  449.    In  this  case  Jessel,  M.  R., 


'  What  will  relieve  the  vendor  of  the  necessity  of  execiitinfj  a  deed.'\  Tbe  vcudor 
need  not  execute  and  tender  a  deed  where  tbe  vendee  pcsilively  refuses  to 
receive  it  at  the  time  and  phiee  agreetl  upon.  It  is  the  same  where  the  vendee 
abandons  the  possession  and  refuses  to  take  the  property.  ^laxwell  v.  Pet- 
tinger,  :{  N.  J.  Eq.,  156;  Crary  v.  Smith,  2  N.  Y  ,  tiO.  Tlie  vendee  need  not 
tender  tlie  purchase  price  where  the  vendor  notifies  liim  that  lie  will  not  fultill. 
"White  v.  Dobsou,  17  Graft  ,  202;  Brown  v.  Eaton,  21  Minn.,  409;  Mattociis  v. 
Young,  GG  Mo.,  459. 


536        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS, 

waived  the  condition  that  the  repairs  should  be  effected 
prior  to  his  taking  a  lease,  and  consequently,  that  the  pro- 
posed lessor  A.,  and  not  the  proposed  lessee  B.,  must  bear 
the  loss.(w-) 

§  1098.  The  question  whether  time  was  originally  of  the 
essence,  and  whether  it  has  since  been  waived,  is  one  of  evi- 
dence, and  can  therefore  be  disposed  of  only  at  the  trial.  (7i)* 

(m)  Counter  v.  Macpherson,  5  Moo.  P.  C         (.n)  Levy  v.  Llndo,  3  Mer.,  81. 
C,  83 ;  and  See  Hughes  v.  Jones,  3  De  G.  F. 

&  J.,  307. 


'  Mciension  of  time.]  Where  delay  has  been  by  common  consent,  and  particu- 
larly where  it  has  occasioned  no  injury,  equity  will  not  refuse  specific  per- 
formrnce.  Leaird  v.  Smith,  44  N.  Y.,  618;  Hull  v.  Sturtevant,  46  Me.,  34; 
Bass  V.  Gillilaud,  5  Ala.,  76;  Schroeppel  v.  Hopper,  40  Barb.,  425;  King  v. 
Ruckman,  24  N.  J.  Eq.,  356. 

WJiere  both  parties  are  in  default.}  When  this  is  the  case,  of  course  neither 
can  complain  of  non-performance.     Crabtree  v.  Levings,  53  111.,  526, 

Default  of  vendee  in  payment  of  purchase  money.]  The  vendee's  failure  to  pay 
the  purchase  money  upon  a  particular  day,  almost  always  admits  of  adequate 
compensation,  either  by  the  payment  of  interest  or  the  imposition  of  a  greater 
penalty;  and  where  time  is  not  made  a  definite  part  of  the  agreement  it  is  not 
essential,  and  will  not  operate  to  prevent  equity  from  decreeing  specific  per- 
formance. Gibbs  V.  Champion,  3  Ohio,  335;  Magoffin  v.  Holt,  1  Duvall,  J)5; 
Keeler  v.  Fisher,  7  Ind.,  718;  Pinckney  v.  Hagedoru,  1  Duer,  89;  Grouer  v. 
Fisher,  11  111.,  666;  Hall  v.  Delaplaine.  5  Wis.,  206;  Andrews  v.  Nullivan,  7 
111.,  327;  Crittenden  v.  Drury,  4  Wis.,  205;  Reed  v.  Jones,  8  id..  302;  Arm- 
strong V.  Pierson,  5  Iowa,  317;  De  Arras  v.  Keyser,  26  Pa.  St.,  249;  Converse 
v.  Blumrich,  14  Mich.,  109;  Bromier  v.  Cauldwell,  8  id.,  465;  Primm  v.  Bar- 
ton, 18  Tex.,  200;  De  Camp  v.  Crane,  19  N.  J.  Eq,,  106;  Shaffer  v.  Niner,  9 
Mich.,  253;  Shouman  v.  Harford,  55  Me.,  197. 

Example  of  due  diligence  in  attempting  to  pay  purchase  money.]  Hubble  v. 
Van  Schoening,  49  IS.  Y,,  326;  reversing  S,  C,  58  Barb,,  498,  is  an  instructive 
case,  as  explaining  what  is  deemed  due  diligence  in  an  attempt  to  tender  the 
purchase  money. 

Delay  constituting  a  "  stale  equity."]  There  is  no  certain  rule  as  to  what  will 
constitute  a  "  stale  equity;"  each  case  mu.st  be  decid.  d  upon  its  surrounding- 
circumstances,  what  has  been  paid,  and  any  reasonable  excuse  for  delay.  Pas- 
chell  v.  Hiuderer,  28  Ohio  St.,  568;  Rayner  v.  Pearsall,  3  John.'s  Ch.,  578; 
Atwater  v.  Fowler,  1  Edw.,  417.  A  delay  of  fourteen  months  was  excused. 
Marquis  of  Hertford  v.  Boore,  5  Ves.,  719;  Glover  v.  Fisher,  11  111.,  666. 
Valuable  improvements  were  made  upon  land  conveyed,  and  several  years 
were  permitted  to  elapse  before  an  action  was  brought.  Held,  that  the  mere 
delay  was  not  fatal.  Laverty  v.  Hall,  19  Iowa,  526.  Delay,  for  the  following 
time,  was  held  to  be  fatal:  One  year,  seven  months  and  thirteen  days,  South- 
comb  V.  Bishop  of  Exeter,  0  Hare,  213;  one  year  and  nine  months.  Lord  James 
Stuart  V.  Loudon  and  Northwestern  R.  11.  Co,,  1  De  G.  M.  &  G.,  721;  three 
years  and  a  half,  Eads  v,  William.s,  4  id.,  674.  The  parties  differed  as  to  the 
construction  of  the  agreemement.  Held,  that  a  delay  of  seven  years  was  fatal. 
Milward  v.  Earl  of  Thanet,  5  Ves.,  720. 

Waiver.]  A  party  cannot  insist  on  a  forfeiture,  in  a  case  where  he  has 
waived  a  condition,  or  treated  the  contract  after  default,  as  continuing  in  force. 
Sharp  V.  Trimmer,  24  N.  J.  Eq.,  422;  Morgan  v.  Herrick,  21  III,  481;  Ewins 
V.  Gordon,  49  N.  H.,  460.  Where  valuable  improvements  have  been  made 
after  default,  see  Bellamy  v.  Ragsdale,  14  B.  Mon.,  364.  A  tender  having  been 
refused  on  the  ground  that  it  was  not  made  in  time — held,  that  the  objection 
could  not  afterwards  be  taken  that  the  tender  was  not  made  in  money.     Duffy 


THE    LAPSE    OF   TIME.  537 

V  O'Don.nvan,  4fl  N.  Y..  223;  sec.  also,  Lavcrty  v.  Moore,  33  id.,  CIS;  v'un- 
ninL^luun  v  Brown,  44  Wis.,  72;  Hcdeiibiirtih  v.  Jones,  73  111  ,  149;  Hoyt  v, 
Texburv,  70  id.,  331  ;  Dittou  v.  Harding,  73  id.,  117;  De  Wolf  v.  Pratt,  42  id  , 
19s.  The  vendor  agreed  to  execute  a  deed  when  demanded,  and  did  not  make 
the  collection  of  pai)er,  assigned  in  payment,  a  condition  precedent  to  the  con- 
veyance of  title.  Held,  that  he  took  the  risk  of  collection,  and  that  the  con- 
tract would  be  specilically  enforced.  Smoot  v.  Rea,  19  iMd..  3'.)S.  AVhere 
either  party  shows  by  his  acts  that  he  has  waived  or  abandoned  the  contract, 
and  particularly  where  circumstances  justify  the  belief  that  he  intended  to 
perform  only  in  case  it  suited  his  interest,  in  such  a  case  he  forfeits  all  claim 
to  equitable  relief.     Eastman  v.  Plumer,  46  N.  H.,  464- 

No  lime  fixed  for  payment,  and  making  titlr.]  W^here  real  property  is  sold, 
and  there  is  no  'time  fixed  either  for  the  payment  or  delivery  of  the  deed,  tlie 
payment  must  be  made  uiion  request,  or  within  a  reasonable  time.  Andrews 
v.  Bell,  56  Pa.  St.,  343. 

Abandonment  of  tlic  contract  by  vendee.}  Any  action  on  the  part  of  the  ven- 
dee which  clearly  indicates  an  abandonment  of  the  contract  on  his  part,  will 
deprive  him  of 'the  right  to  demand  the  interposition  of  a  court  of  equity. 
Finch  v.  Parker,  49  X."Y.,  1 ;  Fuller  v.  Hovcy,  2  Allen,  324;  Sprigg  v.  A  i.in, 
6  J.  J.  Marsh.,  1.58;  Brackin  v,  .Alartin,  3  Yerg.,  So;  Mann  v.  Dunn.  2  Ohio 
St.,  187;  Eflhiger  v.  McGreal,  31  Tex.,  147;  Rose  v.  Swann,  .50  111  ,  :'.71;  Lre- 
iner  v.  Connecticut.  U  Ohio,  18'.);  Howe  v.  Rogers,  32  Tex  ,  218;  Bennett  v. 
Welch,  25  Ind.,  140;  Campbell  v.  Hicks,  19  Ohio  St.,  4-  3;  Gentry  v.  Rogers, 
40  Ala.,  442;  Weber  v.  Marshall,  19  Cal.,  447;  Scott  v  Barker,  14  Ohio,  ;)4/; 
Broaddus  v.  Ward,  8  Mo.,  217;  Patterson  v.  Martz,  8  Watts.  373;  Thompson 
V.  Brueu,  40  111.,  125;  Green  v.  Covillaud,  10  Cal.,  317;  Peck  v.  Brighton,  09 
111.,  200;  Mix  v.  Bulduc,  78  id.,  215. 

GrosH  laches;  vendor  may  resell.}  Where  the  vendee  of  real  property  has 
been  guilty  of  gross  laches, "the  vendor  will  be  justified  in  reselling  the  property; 
this  he  may  do'^  without  first  making  a  tender  of  the  money  already  i)aid  him. 
Mason  v.  'Owens,  5(i  111..  259;  see,  al.so,  Williams  v.  Starke.  2  B.  Monr.,  190; 
Hawthorn  v.  Bronson,  16  Serg.  ct  Rawle,  209;  Gariss  v.  Gariss,  2  N.  J.  Eq..  79. 
Failure,  to  enforce  his  riffhts  of  action.]  A  party  must  not  sleep  on  his  rights. 
Where  a  party  has  risrhts  under  a  contract,  it  will  be  a  good  defense  to  his 
action,  wheu'finally  brought,  that  he  sull'ered  an  unrea.sonably  long  time  to 
elapse  ^vithout  atteinpliug  to  enforce  such  rights.  This  is  true,  iinless  there  is 
some  special  equity  which  requires  a  specific  performance.  \  an  Doreu  v. 
Robinson,  16  N.  J.  Eq.,  250;  Preston  v.  Preston,  5  Otto,  20U;  Keller  v.  Lewis, 
53  Cal.,  113;  McLaurie  v.  Barnes.  72  111..  73.  An  agreement  was  made  to  exe- 
cute a  mortgage.  Held,  that  a  delay  of  eight  years  before  commencement  of 
the  action,  Avas  fatal.  Nelson  v.  Hagerstown  Bank,  27  ]Md.,  51.  A  party  paid 
no  taxes,  exercised  no  ownership  over  an  estate,  ami  asserted  no  rights  under  a 
contract  for  eleven  years,  and  allowed  a  subsequent  purchaser,  without  notice, 
to  improve  the  property.  Held,  that  the  delay  was  such  as  to  bar  all  claim  for 
relief  at  equity.  Inglehart  v.  Vail,  73  111.,  03:  see,  also,  Conway  v.  Kins- 
worthy,  21  Ark.,  9;  Fitch  v.  Boyd,  55  111..  ;107;  Dubois  v.  l?aum.  40  la.  br. 
537;  King  v.  Hamilton,  4  Pet.,  311.  A  vendee  paid  the  purchase  money,  and 
then  slept  on  his  rights  for  sixteen  years,  before  bringmg  his  action  for  specitic 
perfornuince.  HeUl,  that  the  contract  could  not  be  enforced,  in  the  absence  of 
any  strong  equities.  Johnson  v  Hopkins,  19  Iowa,  1 72  A  decree  was  refused 
where  the  delay  was  for  seventeen  years.  Peters  v.  Delaplaine,  49  N  1 .,  363. 
And  where  the  delay  was  eighteen  years.     Watson  v.  Inniau,  23  Tex.,  031. 


I 


638        FRY  ON  SPECIFIC  PEKFORMANCE  OF  CONTRACTS. 


PART   IV. 

OF  THE  MODE  OF  EXERCISING  THE  JURISDICTION. 


CHAPTER  I. 

OF   THE   IIS^STITUTION   OF  THE   PROCEEDINGS. 

§  1099.  At  the  time  when  the  judicature  act,  1873, 
came  into  operation,  tlie  usual  mode  of  proceeding  in  order 
to  obtain  the  specific  performance  of  a  contract  was  to  insti- 
tute a  suit  for  the  pur^^ose  by  bill  of  complaint  in  Court  of 
Chancery. 

§  llOO.  By  the  34th  section  of  the  Judicature  act,  1873, 
all  causes  and  matters  for  the  specific  performance  of 
contracts  between  vendors  and  purchasers  of  real  estates, 
including  contracts  for  leases,  are  specially  assigned  (sub- 
ject to  the  rules  of  the  Supreme  Court[«]),  to  the  chancery 
division  of  the  high  court  of  justice. 

§  11©1.  Causes  or  matters  for  the  specific  performance 
of  other  contracts  are  not  expressly  assigned  to  any  par- 
ticular division  of  the  high  court,  and  may  accordingly,  it 
would  seem,  be  instituted,  at  the  plaintifi"s  option,  in  any 
division,  subject  to  the  powers  of  transfer  exercisable  under 
the  judicature  acts  and  the  rules  of  court. (&) 

§  1 103.  A  form  of  endorsement  for  the  writ  in  an  action 
for  the  specific  x^erformance  of  a  contract  for  the  sale  of  land 
is  given  in  Appendix  A.  (Part  II.  §  i.  9),  to  the  first  sched- 
ule to  the  judicature  act,  1875. 

§  11  Oil.  It  is  provided  by  the  acts  and  rules  (c)  that  any 
action  may  be  transferred  from  one  division  of  the  court  to 
another.  Accordingly,  where,  in  an  action  for  the  recovery 
of  land  commenced  in  the  exchequer  division  the  defendant 
set  up  a  counterclaim  for  specific  performance  of  a  contract 
for  a  lease  of  the  land  to  himself,  and  it  apx)eared  that  there 

(a)  See  Ord.  L.  I.  (c)  Jud.  Act,  1873,  8.  36;  Jud.  Act,  1875,  8. 

(b)  See  Jud.  Act,  1873,  s.  33;  Jad.  Act,  1875,  11 ;  Ord.  L.  I.  rr.,  1,  2. 
3.11;  Ord.  L  I. 


INSTITUTION-   OF   Till:   PKOCEEDINGS.  539 

was  ii2yrimd  /ac/'e  case  for  specific  performance,  the  actir>n 
was  transferred,  on  the  defendant's  ax)plication  and  against 
the  i^laintiff's  will,  to  the  chancery  division. (<^)  And  a 
similar  order  was  affirmed  by  tlie  Court  of  Appeal  in  the 
case  of  Holloway  v.  York,(e)  where,  the  liquidation-trustee 
of  a  person  who  had  contracted  to  purchase  real  estate  hav- 
ing commenced  an  action  in  the  exchequer  division  against 
the  vendor  for  a  return  of  the  deposit,  the  vendor  had  deliv- 
ered a  counterclaim  for  specific  performance  of  the  contract. 

§  1104.  But  a  defendant  sued  in  the  Queen's  Bench  di- 
vision of  the  court  does  not  become  entitled  to  have  the 
action  transferred  to  the  chancery  division  merely  by  put- 
ting in  a  counterclaim  for  the  specific  performance  of  some 
contract  relating  to  land  between  himself  and  the  plain- 
tiff. (/')  The  court  v.ill,  however,  take  notice  of  an  equita- 
ble right  to  specific  pei'formance  appearing  incidentally 
in  the  course  of  an  ejectment  action,  though  there  be  no 
counterclaim  for  such  performance. (^) 

§  110*3.  The  determination  by  the  court  of  questions  of 
law  between  vendoi's  and  purchasers  of  real  or  leasehold 
estate,  and  judicial  declarations  as  to  their  respective  rights 
under  the  contract  of  sale,  mny,  it  is  conceived,  be  obtained 
upon  a  si)eciMl  case  stated  in  the  action. (//^)  The  court  of 
chancery  could  not  enforce  specific  performance  in  a  pro- 
ceeding of  this  nature ;(/)  but  under  the  present  practice, 
where  the  answers  te  the  special  case  dispose  of  the  action, 
they  may  be  turned  into  a  judgment  making  declarations  to 
the  san!e  effect. (,/) 

i;  1  iO<5.  A  convenient  mode  of  obtaining  an  authoritative 
decision  of  questions  arising  upon  some  of  the  class  of  con- 
tracts discussed  in  this  treatise  has  been  introduced  by  the 
vendor  and  purchaser  act,  1874,  under  which  (section  9)  a 
vendor  or  purchast^r  of  real  or  leasehold  estate  or  their  re- 
spective representatives  may  at  any  time  apply  in  a  sum- 
mary way  to  a  judge  of  the  high  court  in  chambers  in  respect 
of  any  requisitions  or  objections  or  any  claim  for  compen- 

(d)  Hillman  v.  Mayhew,  1  Ex  D.,  I3i!.  deoree  for  specific  performance),  and  Ord., 

(«)  2  Kx    I).,:5:>3  XXXI v. 

(/)  Sti>rey  v.  Waddle,  4  Q.  B  D.,  289  (i)  See  Evans  v    Saunders,  22  L.  T..  4:5,  51. 

(g)  Willidina  v.  Snowden,  \V.  N.,  1880, 124  T  lie  pr.>cediire    by  special  case  under  >ir 

(C.  1'.  Div.)  George  Turner's  act  {\:i  &  14  Vict.,  c    3'),)  is 

(h)  Compare  Sabin  v.  Heape,  27  I5eav.,  .^53,  now  abolished  )Ord..  XXXlV.  r.  7). 

661  (where  the  decision  was  tantamount  to  a  (j)  IIarri-.on  v.  Cornwall   Minerals   R:iil- 

way  Co.,  16  Ch.  D.,  67,  SO. 


540        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

satioii  or  any  other  question  arising  out  of  or  connected 
"with  the  contract  (not  being  a  question  affecting  the  exist- 
ence or  validity  of  the  contract),  and  the  judge  is  to  make- 
such  order  upon  the  application  as  to  him  shall  appear  just, 
and  to  order  how  and  by  whom  all  or  any  of  the  costs  of 
and  incident  to  the  application  are  to  be  borne  and  paid. 
In  very  many  of  the  disputes  that  arise  between  vendors 
and  purchasers  of  realty  and  leaseholds  an  application 
under  this  section  is  an  advantageous  and  efficient  substi- 
tute for  an  action  for  specific  performance.  (A*)  The  parties 
to  such  an  aj^plication  are  in  the  same  position  as  they 
would  be  under  a  reference  as  to  title  in  such  an  action. (Z) 

A  person  who  has  availed  himself  of  the  provisions  of  the 
act  is  not  entitled  afterwards  to  bring  an  action  for  the  spe- 
cific x)erformance  of  the  contract  which  was  the  subject  of 
the  summons. {'/n) 

§  1107.  By  the  county  courts  act,  1865,  section  1,  all  the 
jurisdiction  of  the  Court  of  Chancery  in  suits  for  specific 
performance(7?)  was  given  to  the  county  courts  where  the 
purchase-money  did  not  exceed  the  sum  of  £500;  and  by 
virtue  of  the  6th  section  of  the  county  courts  act,  1867,  the 
jurisdiction  so  given  may  now  be  exeicised  in  all  actions  for 
specific  performance  of  any  contract  for  the  sale,  purchase, 
or  lease  of  any  property,  where,  in  the  case  of  a  side  or  pur- 
chase, the  purchase  money,  or  in  the  case  of  a  lease  the 
value  of  the  property,  does  not  exceed  £500.  Apparently, 
however,  the  jurisdiction  under  these  enactments  is  confined 
to  cases  where  the  consideration  for  the  sale  is  a  sum  certain. 

g  1 108.  Directions  are  given  in  the  county  courts  acts  of. 
1865  and  1867  (28  and  29  Vict.  c.  99,  10  ;  30  and  81  Vict.  c. 
145,  s.  1)  as  to  the  particular  county  court  to  be  selected,  in 
any  particular  case,  for  an  action  for  specific  performance  ; 
and  the  details  of  the  practice  and  procedure  in  all  county 
court  actions  are  regulated  by  the  county  couit  rules,  1875 
and  1876.  Every  county  court  has,  in  dealing  with  actions- 
within  its  jurisdiction,  all  the  i)owers  of  the  high  court  of 

(k)  For  cases  uiKier  this  section   see   lie  774;  Drai)er8  Co.  v.  McCaun,  1  L.  R   Ir.,  13 

Waddell's  contract.  2  Ch.  I).,  172;  Re  Cole-  (hunimons  may  be  served  out  of  the  jiirlsdic- 

nian  and  .Jnrrom,  4  Ch.   D.,  165  (where,  to  tion) 

strengthen  the  purchaser's  title,  .lessel,  M.  (/)  In  Re  Burroughs,  Lynu  and  Sexton,  5 

R.,  delivered  jud)inieritin  court;  He  Popple  Ch   D..611I. 

and    Barratt's  contract,  25  W.   R.,  4S;    Ke  (»i)  Thompson  v.  Rinpor,  29  W.  R.  520. 

Keitrl.yand  Clayton's  contract,  7  Vh  I>.,615;  (n)  See  Wilcox  v.  Marshall,  L.  R.  3Eq.,270- 

Ke  Metropolitan  District  Railway  Co.  &  Cosh,  (contract  for  lease). 
13  Ch.  D,,C07;  Osborne  to  Kowle'tt,  13  Ch.  D., 


INSTITUTION   OF  THE   PROCEEDINGS.  541 

justice  (judicature  act,  1873,  s.  89) ;  and,  in  a  proper  case, 
any  action  may  be  transferred  either  from  a  county  court  to 
the  high  court,  or  mce  versd^  or  from  one  county  court  to 
another,  (o)  An  appeal  lies  from  the  decision  of  a  county 
court  judge  in  an  action  for  specific  performance  to  a  divis- 
ional court  of  the  high  court ;  but,  except  by  special  leave, 
there  is  no  further  appeal.  (^) 

i;  1109.  The  jurisdiction  of  the  high  court  in  cases  of 
specific  performance  has  not  been  ousted  by  that  conferred 
by  county  courts.  Though  the  matter  may  be  within  the 
jurisdiction  of  the  inferior  court,  a  plaintiff  is  at  liberty  to 
bring  his  action  in  the  high  court  (subject,  of  course,  to  the 
statutory  provisions  as  to  transfer  already  referred  to),  and 
is  entitled,  if  successful,  to  tiie  usual  costs  of  a  suitor 
tliere.(<7)' 

i;  1110.  It  may  here  be  mentioned  that  by  the  land 
transfer  act,  187.3,  it  has  been  enacted  that  (s.  1)3)  where  a 
suit  is  instituted  for  the  specific  performance  of  a  contract 
relating  to  registered  land,  or  a  registered  charge,  the  court 
having  cognizance  of  such  suit  may  by  summons,  or  by  such 
othei-  mode  as  it  deems  expedient,  cause  all  or  any  j^arties 
who  have  registered  estates  or  rights  in  such  land  or  charge, 
or  have  entered  up  notices,  cautions,  or  inhibitions  against 
the  same,  to  appear  in  such  suit,  and  show  cause  why  such 
contract  should  not  be  specifically  performed,  and  the  court 
may  direct  that  any  order  made  by  the  court  in  such  suit 
^liall  be  binding  on  such  parties  or  any  of  them.  Further, 
by  the  94th  section  of  the  same  act,  all  costs  incurred  by 
any  party  so  appearing  in  a  suit  to  enforce  against  a  vendor 

(o)  28  &  29  Vict.  c.  99,  ss.  3,  8,  9, 11;  30  &  31  (q)  Scotto  v.   Heritage,   L.  R.  3  Eq  ,  '212; 

Vict,  c   142,  8  a;  Jiid.  Act,  1873,  a  90.  Brown  v.  Rye,  1..  R.  17  Eq.,  343;  Carpmael  v. 

(p)  28  &  29  Vict.  c.  99,  88.  18,  19;  Jud.  Act,  Carvell,  18  vV.  U.,  513. 
1873,  8.  45. 

'  Concurrent  jurisdiction.']  Equitj'  will  not  assist  where  the  remetly  at  law- 
has  licen  barred  by  the  statute,  in  cases  of  concurrent  jurisdiction.  IJhuichard 
V.Williamson,  70  111.,  647. 

Statute  a  bar  in  Neic  T<^rk  after  ten  yearn.]  "  The  provisions  of  the  Code  re- 
quiring a  written  acknowk-dgiuent  to  take  a  case  out  of  the  statute  of  limita- 
tions has  effectually  destroyed  the  old  doctrine  on  which  courts  of  equity 
relieved  vendees  from  forfeitures  incurred  in  couseciueuce  of  their  failure  to 
perform  executory  contracts  for  the  sale  of  lands.  That  doctrine  rested  on  the 
principle  that  time  was  not  of  the  essence  of  the  contract;  but  now  the  statute 
Las  interpo.sed  an  absolute  bar  after  the  lapse  of  ten  years."  Gilbert,  J.,  in 
McCotter  v.  Lawrence,  4  Hun,  107. 


542         FRY  ox  SPECIFIC  PERFORM ANCK  OF  COXTKACTS. 

specific  performance  of  liis  contract  to  sell  registered  Lind 
or  a  registered  charge  are  to  be  taxed  as  between  solicitor 
and  client,  and,  unless  the  court  otherwise  orders,  paid  by 
such  vendor,  (r) 

§  1111.  How  far  the  summary  jurisdiction  conferred  by 
the  35th  section  of  the  companies  act,  1802,  is  properly 
applicable  to  the  enforcement  of  contracts  for  the  sale  and 
purchase  of  shares  is  a  question  which  has  been  much  dis- 
cussed, but  can  hardly  be  said  to  be  even  now  satisfactorily 
settled.  That  section  provides  that  if  the  name  of  any  per- 
son is  without  sufficient  cause  entered  in  or  omitted  from 
the  register  of  members  of  a  company  under  the  act,  or  if 
default  is  made  or  unnecessary  delay  takes  place  in  enter- 
ing on  the  register  the  fact  of  any  person  having  ceased  to 
be  a  member  of  the  company,  the  person  or  member  ag- 
grieved may  apply  by  motion  or  summ<ms  for  an  order  of 
the  court,  that  the  register  may  be  rectilied,  "and  the  court 
may  either  refuse  such  application,  with  or  without  costs 
to  be  paid  by  the  applicant,  or  it  may,  if  satisfied  of  the  Jus- 
tice of  the  case,  iriake  an  order  for  the  rectification  of  the 
register,  and  may  dir-ct  the  company  to  pay  all  the  costs 
of  such  motion,  application,  or  petition,  and  any  damages 
the  party  agrieved  may  have  sustained.  The  court  may,  in 
any  lU'oceeding  under  this  section,  decide  on  any  question 
relating  to  t\w  title  of  any  person  who  is  a  party  to  such 
proceeding  to  have  his  name  entered  in  or  omitted  from  the 
register,  whether  such  question  arises  between  two  or  more 
members  or  alleged  members  or  between  any  members  or 
alleged  members  and  the  company,  and  generally  the  court 
may  in  any  such  proceeding  decide  any  question  that  it 
be  necessary  or  expedient  to  decide  for  the  rectification  of 
the  register." 

§  111:3.  The  enactment  may  seem  at  first  sight  to  offer 
an  attractive  and  efficient  substitute  for  an  action  for  specific 
performance  incases  arising  out  of  contracts  for  the  sale  of 
shares,  but  the  decisions  upon  it  show  that  its  applicability 
in  practice  to  such  cases  is  by  no  means  universal.  The 
jurisdiction  which  it  confers  is  clearly  discretionai-y  ;  and, 
whatever  the  effect  of  ihe  limited  power  which  it  gives  the 

(r)  See  too  as  to  bringing  in  third  parties,    Onl,  XVI.  rr.  17,  10,  21;  s-upra,  §  168  et  seq. 

iUHl  §  877. 


INSTITUTION    OF   THE   PROCEEDINGS.  543 

court  over  costs  upon  the  generality  of  its  subsequent 
language,  (5)  it  seems  that  the  court  will  at  any  rate  be  slow- 
to  exercise  this  jurisdiction  for  the  purpose  of^deciding 
questions  between  vendors  and  purchasers  of  shares,  except 
where  the  legal  title  of  the  applicant  is  clear,  {t) 

(s)  See  per  Jessel,  M.  R.,  in  Ex  parte  Sar-  L.  R.  5  Eq.,  193;  Ex  parte  Sargent,  L.  R  ,  17 

gent,  L.  R.  17  Eq.,  276.  Eq.,  273;  Ex  parte  Shaw,  2  Q.  B.  D.,  463.  See 

(0  Ward  and  Henry's  case,  L   R.  2  Eq.,  too  Buckley,  Comp  Acts  (3a  ed.),  81-84. 
226;  2  Ch.,  431;  Musgrave  and  Hart's  case, 


544        FKY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 


CHAPTER  II. 

OF  INJUNCTIONS. 

ij  1113.  It  has  already  been  in  effect  stated(a)  that 
executed,  as  distinguished  from  executory,  contracts  are 
not  witliin  the  scope  of  this  treatise.  The  present  chapter 
will  accordingly  be  confined  to  the  consideration  of  the  use 
of  injunctions  in  connection  with  contracts  of  the  latter 
kind. 

§  1114.  The  jurisdiction  of  the  court  in  injunction  is 
connected  with  the  specific  })erforniance  of  executory  con- 
tracts in  three  wa^^s  :' — 

(1)  Sometimes  the  injunction  is  the  instrument  by  which 
the  court  specifically  enforces  the  contract  itself  or  some 
part  of  it  ; 

(2)  Sometimes  the  injunction  is  merely  incident  or  ancil- 
lary to  the  performance  of  the  contract ;  and 

(3)  Sometimes  the  injunction  is  used  for  the  purpose  of 
giving  effect  to  rights  resulting  from  the  non-performance 
of  the  contract. 

1.  Injunction  the  uistru/nent  of  performance. 
%  1115.  It  is  evident  that  whenever  the  court  grants  an 
injuncticjn  restraining  the  breach  of  any  express  or  implied 

(a)  Supra,  §  21 ;  cf.  §§  180,  1540. 

'  Injunction  ;  xcliere  lite  law  would  work  injustice.  ]  lu  a  case  when,  by  fraud 
or  mistake,  a  party  has  an  advantage  in  proceeding  at  law,  and  which  will 
manifestly  make  tlie  law  a  sword  of  injustice,  a  court  of  equity  will  restrain 
the  party  where  conscience  is  thus  barred  from  using  the  advantage  he  has  im- 
properly gained.  In  such  a  case  it  was  said,  per  curiam  :  "The  only  ground 
upon  whicli  this  testimony  can  be  received  to  control  the  legal  effect  and  opera 
tion  of  these  covenants  is  the  fraud  of  the  party  in  attempting  to  enforce  them 
in  violation  of  his  agreement.  The  evidence  is  regarded  as  sufficiently  certain 
and  clear,  in  the  proof  of  that  contract,  that  the  damages  to  be  paid  by  the  rail- 
road for  their  right  in  the  premises  were  to  be  divided  between  these  parties  in 
specific  proportions,  and  that  no  claim  was  to  be  made  on  the  grantor  on  his 
covenant  in  this  deed  for  any  matter  arising  out  of  that  negotiation;  and  evi- 
dently it  was  in  confident  reliance  upon  this  understanding  that  the  grantor 
neglected  so  to  qualify  his  covenant  tliat  no  right  of  action  could  arise  thereon 
for  that  matter.  Regarding  these  facts,  therefore,  as  sufficiently  proved,  and 
the  bill  as  sufficiently  setting  up  the  fraud  and  asking  for  rcl'of  on  that  ground, 
we  think  the  case  is  brought  within  the  general  rule  upon  which  relief  is 
granted."    Taylor  v.  Gilman,  25  Vt.,  411. 


iisr  JUNCTIONS.  545 

term  of  a  contract  it  thereby  jpTO  tanto  specifically  enforces 
the  performance  of  the  contract.  (&) 

§  1110.  Where  the  contract  contains  express  negative  as 
well  as  positive  terms,  and  the  positive  terms  are  capable  of 
specific  performance  by  the  court,  the  court  may  and 
naturally  will  enforce  by  injunction  the  observance  of  the 
negative  terms  ;  for  by  so  doing  it  promotes  the  complete 
performance  of  the  contract  as  a  whole. 

§  1117.  Thus  where  the  commissioners  of  woods  and 
forests  contracted  with  a  committee  of  the  united  service 
club  for  the  grant  by  the  commissioners  to  the  trustees  of 
the  club  of  a  lease  of  a  specified  piece  of  ground,  and  further 
that  a  specified  plot  on  the  south  side  of  this  piece  of 
ground  should  be  laid  out  as  an  ornamental  garden,  and  no 
buildings  whatever  should  be  erected  thereon,  and  after- 
wards the  commissioners  began  to  build  stables  on  the  plot; 
the  court  sjDecifically  enforced  the  observance  of  the  negative 
stipulation  by  restraining  the  commissioners  from  continu- 
ing to  build  on  the  plot  and  also  from  permitting  such  part 
of  the  stables  as  had  already  been  built  to  remain  u^Don  it.(c) 

§  Ills.  But  where  part  of  the  contract  is  of  such  nature 
as  to  be  incapable  of  sjiecific  performance  by  the  court,  a 
difiiculty  presents  itself  with  respect  to  the  court's  enforce- 
ment of  any  other  part  of  it  by  injunction. 

For,  as  we  have  seen,((^)  the  court  will  not,  as  a  general 
rule,  enforce  part  of  an  executory  contract  unless  it  can  per- 
form the  whole  ;  and,  in  the  case  supposed,  the  grant  of  an 
injunction  would  obviously  be  tantamount  to  a  merely 
partial  enforcement  of  the  contract. 

§  1119.  On  the  principle  referred  to  in  the  last  preced- 
ing section,  one  would  exjDect  to  find  the  court  alwa};s 
refusing  to  interfere  by  injunction  to  restrain  the  breach  or 
non-performance  of  part  of  an  executory  contract  where  the 
rest  of  the  contract  is  incapable  of,  or  is  not  a  proper  subject 
for,  specific  performance :  and  in  fact  there  are  numerous 
instances  of  such  refusal,  (e) 

(6)  As  to  injunctions  r?stralning  applica-  (d)  Part  III.,  chap,  xvi.,  §§  80'2,  SU,  833  et 

tions  to  Parliament,  see  infra,  Part  VI.,  chap.  seq. 

ix.,  §  1567et  seq  ;  and,  as  to  the  discretionary  (e)  See  e.  g.,  supra,  §  isiS  et  seq.,  and  the 

character  of  the  jurisdiction,  see  per  Lord  cases  there  cited:  also  Fothergill  v.   How- 

Westbury  in  Low  v.  Innes,  4  De  G.  J.  &  S.,  land,  L.  R.  17  Eq.,  132,  cited  supra,  §  S40;  per 

29J.  I^ord  Cottenham  in  Dietrichseu  v.  Cabburn, 

(c)  Rankin  v.  Huskissom,  4  Sim.,  13  (Shad-  2  Ph.,  67;  Rogers  v.  Wllmot,  \V.  N.,  18SJ,  88. 

well,  v.  C).  Cf.   Home   v.    London    and  North  western 


35 


Railway  Co.,  10  W.  R.,  170. 


546        FRY  01^  SPECIFIC  PERFOKMAISXE  OF  CONTRACTS. 

§  1120.  There  are,  however,  cases  in  which,  though  the 
contract  as  a  whole  has  been  such  as  the  court  could  not  or 
would  not  specitically  enforce,  it  has  nevertheless  'granted 
an  injunction  restraining  the  breach  of  some  express  or 
implied  term  of  it.  These  cases  have  already  been  dis- 
cussed at  length  in  a  previous  chapter.  (/)  It  may  here 
be  added  that  whenever,  in  such  cases,  a  person  is  com- 
pelled by  injunction  to  observe  some  negative  term  of  a 
contract,  the  whole  benefit  of  the  injunction  is  conditional 
upon  the  plaintiff's  performing  his  part  of  the  contract, 
and  the  moment  he  fails  to  do  any  of  the  acts  which  he 
has  engaged  to  do,  and  which  were  the  consideration  for  the 
negative  term,  the  injunction  will  be  liable  to  be  dis- 
solved. (//) 

§  1121.  In  connection  with  the  cases  referred  to  in  the 
last  preceding  section,  the  old  case  of  Martin  v.  Nutkin(Z') 
may  be  referred  to.  There  articles  were  executed  between 
the  plaintiffs,  who  resided  very  near  the  church  of  Hammer- 
smith, and  the  parson,  church  wardens,  overseers,  and  some 
of  the  other  inhabitants  of  the  parish,  by  which  the  plain- 
tiffs covenanted  to  erect  a  new  cupola,  clock  and  bell  to  the 
church,  and  the  other  parties  covenanted  that  a  bell  which 
had  been  daily  rung  at  five  o'clock  in  the  morning,  to  the 
great  annoyance  of  the  plaintiff's,  should  not  be  rung  during 
the  lives  of  the  2:)laintiffs  or  the  survivor  of  them  :  the 
plaintiffs  performed  their  part  of  the  contract,  but  the  bell 
after  about  two  years  was  rung  again  :  the  contract  on  the 
jDart  of  the  parish  authorities  was  specifically  enforced 
against  them  by  means  of  an  injunction  ;  although,  as  Lord 
St.  Leonards  remarked  in  the  course  of  his  judgment  in 
Lumley  v.  Wagner,  (/)  the  court  clearly  could  not  have 
granted  any  sj)ecific  performance. 

2.  Injunction  ancillary  to  'performance. 

§  1122.  The  jurisdiction  of  the  court  in  injunction  is 
often  ancillary  to  that  in  specific  performance,  for  the  jour- 
pose  of  preventing  the  defendant  making  a  use  of  some  legal 
interest  or  right  vested  in  him  in  a  way  inconsistent  with 

(/)  Part  III.,  chap,  xvi.,  §  833  et  seq.  fA)  2JP.  Wms.,  266. 

(g)  See  per  Lord  Hatherley  (then  V.  C.)  in       (i)  1  De  G.  M.  &  G.,  614. 
^  Stocker  v.  Wedderbiurn,  3  K.  &  J.,  4i)5. 


INJUNCTIONS.  *  547 

the  equity  claimed  by  the  plaintiff,  or  embarrassing  the 
plaintiff  by  dealing  with  the  property  during  the  pendency 
of  the  action,  or  obstructing  the  performance  of  some  act 
incidental  to  the  execution  of  the  contract.  "The  court 
will  in  many  cases  interfere  and  preserve  property  in  statu 
quo  during  the  pendency  of  a  suit,  in  which  the  rights  to  it 
are  to  be  decided,  and  tliat  without  expressing,  and  often 
without  having  the  means  of  forming,  any  opinion  as  to  such 

rights. "(./) 

§  1123.  In  the  class  of  cases  now  to  be  considered  the 

injunction  is  therefore  granted,  upon  interlocutory  applica- 
tion and  until  the  trial,  on  the  plaintiff  showing  a  lyrima 
facie  case  for  specific  performance.  (A*)  It  is  not  necessary 
that  it  should  be  clear  that  the  plaintiff  will  succeed  at  the 
trial :  it  is  sufficient  if  there  is  ground  for  supposing  that 
relief  may  be  given. (Z)  For  on  this  application  the  court 
will  not  decide  delicate  points,  (7?z)  such  as  delay,  which  can 
only  be  decided  at  the  trial,  {n) 

§  1124.  Accordingly,  where  an  intended  lessor  was  sued 
by  an  intended  lessee  for  the  specific  performance  of  a  con- 
tract to  grant  a  lease,  he  was  restrained  from  bringing  an 
ejectment  during  the  suit.(o)  In  another  case  the  plaintiff 
(purchaser)  obtained  an  injunction  to  restrain  the  vendor 
from  conveying  awaj^  the  legal  estate,  which  might  compel 
the  plaintiff  to  make  some  other  person  a  party  to  the 
suit.(^)  In  other  cases  injunctions  to  restrain  sale  and  sur- 
render of  estates  as  to  which  specific  performance  was 
sought,  were  granted  on  certificate  of  bill  filed  and  affida- 
vit, (g)  And  in  another  case,  an  injunction  was  granted  to 
restrain  a  purchaser,  who  had  got  into  possession,  from  cut- 
ting timber  on  the  estate.  (?')' 

( j )  Per  Lord  Cottenham  in  Great  Western  land  v.  Hall,  8  Ves.,  92 ;  Attwood  v.  Barham, 

Railway    Co.   v.    Birmingham  and    Oxford  2  Russ  ,  186.    Distinguish  Fox  v.  Purssell,  3 

Junction  Railway  Co.  2  Pi).,  602;   Cf.  Order  Sm.  &G.,242. 

LIT.  rr.  1-3.  (p)  Echliflf  v.  Baldwin,  16  Ves.,  267. 

{k)  Powell  V.  Lloyd,  1  Y.  &  J  ,  427.  (?)  Curtis  v.  Marquis  of  Buckingham,  3  V. 

(^  Hudson  V.  Bartram,  3  Mad.,  440,  447;  &  B.,  168:  Spiller  v.  splller,  3  Sw.,  5.56. 

Attwood  V.  Barham,  2  Russ. ,  186.  {r\  Crocktbrd  v.   Alexander,  15  Ves.,   138. 

(ni)  Price  v.  Assheton,  1  Y.  &  C.  Ex.,  82.  Distinguish  Marshall  v.  Watson,  25  Beav., 

(»)  Levy  V.  Lindo,  3  Mer.,  81.  501,  504. 

(o)  Boardman  V.  Mostyn,  6Ve8.,467;  Buck- 


1  Injunction  granted.']  The  vendee  paid  the  entire  consideration  for  personal 
property,  and,  before  its  delivery,  the  vendor  was  about  to  dispose  of  it  in  fraud 
of  vendee's  rights.  The  vendee  was  insolvent,  and  great  difficulty  would  have 
been  experienced  in  replevying  the  property.  Held,  that  the  vendee  was  enti- 
tled to  an  injunction  in  the  nature  of  specific  performance.  Parker  v.  Garri- 
son, 61  111.,  350;  see,  however,  City,  etc.,  Ins.  Co.  v.  Olmstead,  33  Conn.,  476. 


548        FRY  ox  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

§  1135.  On  the  same  principle,  where  the  contract  was 
for  the  sale  of  a  leasehold  public  house  at  a  fixed  price,  and 
of  the  furniture,  fixtures,  and  other  effects  on  the  premises, 
at  a  valuation  to  be  made  by  a  valuer  named  in  the  con- 
tract, and  the  vendor  refused  to  allow  the  valuer  to  enter 
upon  the  premises  for  the  purpose  of  making  an  inventory 
of  the  articles  to  be  valued,  Jessel,  M.  R.,  upon  the  interlo- 
cutory application  of  the  purchaser  in  a  suit  instituted  by 
him  for  the  specific  performance  of  the  contract,  made  an 
order  compelling  the  vendor  to  allow  the  valuer  to  enter. (5) 
"I  have  no  hesitation,"  said  his  lordship,  "in  saying  that 
tliere  is  no  limit  to  the  practice  of  tlie  court  with  regard  to 
interlocutory  applications  so  far  as  they  are  necessary  and 
reasonable  applications  ancillary  to  the  due  performance  of 
its  functions,  namely,  the  administration  of  justice  at  the 
hearing  of  the  cause. "  (^) 

§  lis©.  In  one  case,  wdiere  the  validity  of  the  contract 
was  disputed,  Lord  Langdale,  M.  R.,  refused  a  motion  for 
an  injunction  to  restrain  the  vendpr  from  letting  or  selling 
tlie  estate  pending  the  hearing,  on  the  ground  that  a  lessee 
or  purchaser  ^m^e/i^e  lite  would  take  subject  to  the  plain- 
tiff's rights. (zO  ^^^  ii^  another  case,  where,  on  the  plaintiff 
(purchaser)  making  his  interlocutory  application,  it  w^as  not 
clear  tliat  he  would  be  able  at  the  hearing  to  establish  his 
right  to  specific  performance,  the  court  of  appeals  refused, 
on  tlie  ground  of  comparative  convenience,  to  restrain  the 
vendor  by  injunction  until  the  hearing  from  selling  the 
property  in  dispute,  it  appearing  that  the  grant  of  tlie 
injunction  would,  if  the  iDlaintiff  ultimately  failed,  do  more 
injury  to  the  defendant  than  its  refusal  would  occasion  to 
the  plaintiff  should  he  ultimately  be  successful.  (?))  Turner, 
L.  J.,  however,  in  his  judgment  in  the  last  cited  case,  dis- 
tinctly affirmed  the  general  principle  that,  if  there  is  a  clear 
valid  contract  for  sale,  the  court  will  not  permit  the  vendor 
afterwards  to  transfer  the  legal  estate  in  a  third  person, 
although  such  third  person  would  be  affected  by  lis  pen- 
dens.{1.6) 

(s)  Smith  V.  Peters,  L.  R.  20  Eq.,  511.    Of.    4  De  G.  J.  &  S.  462;  Munro  v.  Wlyenhoe  and 
infra,  §  1564  linghthngsea  Rai  way  Co.,  4  De  Or.  J.  &  S., 

(M)  Turner  ^Vrlght,  4  Beav.,  40.  '' w)  3  Oe  G.  J.  &  S  ,  70.  where  the  Lord 

\v\  Hadley  v.  The  London  Bank  of  Scot-  Justice  also  suggests  a  probable  explanation 

land.  Limited,  3  De  G.  J.  &  S..  63.  *,f.  Garrett  ot  a  (seemingly)  contrary  dictum  of  Lord 

V  Banstead  and  Epsom  Downs  Railway  Co.,  El.lon  in  Spiller  v.  SpiUer,  3  Sw,  55(. 


ijsr  J  UNCTIONS.  549 

§  1127.  It  is  hardly  necessary  to  remark  that  the  court 
will  not  restrain  a  person  who  is  under  contract  to  buy  an 
estate  from  buying  another,  merely  on  the  ground  that  the 
completion  of  the  second  purchase  may  incapacitate  him  to 
complete  the  first,  (re)' 

§  1128.  The  court  will,  in  some  cases,  restrain  even  third 
persons,  whose  rights  are  independent  of  the  contract,  from 
acting  in  a  manner  which  would  prejudice  the  plaintiff  in 
respect  of  the  property.  For  instance,  where  after  a  con- 
tract for  the  sale  of  an  advowson  the  incumbent  died,  and  a 
bill  was  filed  against  the  vendor  and  the  bishop,  the  court 
restrained  the  vendor  from  presenting,  and  the  bishop  from 
instituting,  or,  in  case  of  a  lapse  taking  place  pending  the 
suit,  from  collating  to  the  living  any  clerk  not  nominated 
by  tlie  plaintiff .  (2/) 

§  1 129.  Other  cases  in  which  the  court  has  restrained  by 
injunction  acts  inconsistent  with  the  due  performance  of 
the  contract  have  been  discussed  in  a  previous  chapter. (^) 

§  1 130.  The  Court  of  Chancery  used  to  grant  injunctions 
to  restrain  actions  at  law  for  the  deposit  upon  its  being  paid 
into  court  ;(a)  and  to  restrain  actions  at  law  for  damages 
for  delay  in  completion  ;{b)  or  in  which  the  defense  was  a 
contract  between  the  parties  which  the  court  of  law  could 
not  specifically  enforce  ;(c)  and  it  had  jurisdiction  to  restrain 
parties  from  applying  for  jn'obate  or  the  grant  of  letters  of 
administration,  and  would  so  restrain  them  if  it  were 
necessary  for  the  purpose  of  enforcing  a  contract  which 
they  had  entered  into.  (cZ)  But  whether,  in  a  suit  for  the 
specific  performance  of  a  contract  for  a  separation  deed 
between  husband  and  wife,  it  would  have  been  within  the 
province  of  the  Court  of  Chancery  to  interfere  by  injunction 
to  restrain  a  suit  in  the  court  of  probate  for  the  restitution 
of  conjugal  rights,  as  incident  to  the  main  object  of  the  suit 
in  equity,  can  hardly  be  said  to  have  been  determined, 
though  it  was  twice  discussed  by  the  House  of  Lords  in  the 
case  of  Wilson  v.  Wilson,  (e)  opiDosite  opinions  having  been 

{a:)Syer8v.BrightonBreweryCo.(Limitecl),  213,226.    See  too  Vlney  v.  Chaplin,  2  De  G. 

13  W.  R.,  220.  &  J .,  468  (action  tor  purchase-money) 

[y)  Nicholson  V.  Knapp,  9  Sim  ,  326.  (c)  Waterlovv  v.  Bacon,  L  R.  2Eq.,514. 

(2)  Part  III,  chap,  xvi.,  §834  et  seq.  td)  Per  Mellish,    L.    J.,    in    VVilcocks  v. 

(n)  Foniyce  v.  Ford,  4  Bro.  C   C,  494.  Carter,  L.  R.  10  Ch.,  444. 

(6)  Duke  of  Beaufort  v.  Glynn,  3  Sm.  &  G.,  (e)  1  H.  L.  C,  538;  S.  C.  5  H.  L.  C,  40. 


560        FRY  ON  SPECIFIC  PERFORM  A  XCE  OF  CONTRACTS. 

expressed  on  the  point  by  tlie  learned  lords  by  whom  that 
case  was  decided. 

§  1131.  Under  the  present  practice  (Judicature  act,  1873, 
s.  24,  subs.  5),  no  cause  or  proceeding  pending  before  the 
high  court  or  the  court  of  appeal  can  be  restrained  by 
injunction,  but  every  matter  of  equity  on  which  an  injunc- 
tion against  the  prosecution  of  any  such  cause  or  proceeding 
might,  if  the  judicature  act,  1873,  had  not  been  passed,  have 
been  obtained,  either  unconditionally  or  on  any  terms  or 
conditions,  may  be  relied  on  by  w^ay  of  defense  thereof.  It 
is  by  the  same  sub-section  enacted  that  nothing  in  that  act 
contained  shall  disable  either  of  the  said  courts  [the  high 
court  and  the  court  of  apj^eal],  from  directing  a  stay  of  pro- 
ceedings in  any  cause  or  matter  piending  before  it  if  it  shall 
think  fit ;  and  that  any  person,  wdiether  a  party  or  not  to 
any  such  cause  or  matter,  who  would  have  been  entitled,  if 
that  act  had  not  been  passed,  to  apply  to  any  court  to 
restrain  the  prosecution  thereof,  shall  be  at  liberty  to  apply 
to  the  said  courts  respectively  by  motion  in  a  summary  way 
for  a  stay  of  j)roceedings  in  such  cause  or  matter  either 
generally,  or  so  far  as  may  be  necessary  for  the  purpose  of 
justice  ;  and  that  the  court  shall  thereupon  make  such  order 
as  shall  be  just. 

§  113^.  In  other  words,  the  defendant  to  an  action  who 
desires  to  avail  himself  of  some  matter  which  would  form- 
erly have  been  a  ground  for  asking  the  Court  of  Chancery 
to  restrain  proceedings  in  another  court,  has  now  two  courses 
only  open  to  him  : — he  may  plead  the  matter  as  a  defense 
to  the  action,  or  he  may  make  it  the  ground  of  an  ai)plica- 
tion  to  the  court  in  wiiich  the  action  is  pending  to  stay  the 
proceedings  in  an  action.  (/) 

3.  Enf or  cement  of  rigid  resulting  from  non-performance. 

§  1133.  The  court  wdll,  in  a  proper  case,  grant  an  injunc- 
tion for  the  purpose  of  enforcing  a  right  resulting  to  the 
applicant  from  the  non-performance  of  the  contract. 

§  1134.  Thus,  where  a  decree  had  been  made  declaring 
that  a  contract  betw^een  a  railway  company  and  the  rector 

(/)  Garbutt  v.  Fawcus,  1  Ch.  D.,  155;  Ee  People's  Garden  Co.,  1  Ch.  D.,  44. 


INJUNCTIONS.  551 

of  W.  for  the  purchase  by  the  company  of  certain  glebe 
lands  of  which  the  company  had  taken  possession  before 
the  institution  of  the  suit  ought  to  be  specihcally  performed, 
and  that  the  plaintiff  was  entitled  to  a  vendor' s  lien,  and 
directing  the  company  to  pay  the  purchase-money  by  a  day 
named,  with  liberty  for  the  plaintiff,  in  case  of  default,  to 
apply  for  the  purpose  of  enforcing  his  lien ;  and,  default 
having  been  made  by  the  company,  an  order  had  been  made 
for  the  sale  of  the  lands,  but  two  attempts  to  sell  had  proved 
unsuccessful :  Lord  Selborne  finally  ordered  that,  in  default 
of  the  company  paying  the  purchase-money  with  interest 
and  costs  into  court  within  a  month  after  service  of  the 
order,  an  injunction  should  be  awarded  to  restrain  them 
from  continuing  in  possession  of  the  lands.  (^) 

§  1135.  -With  regard  to  the  extent  of  the  court's  juris- 
diction in  injunction,  it  is  to  be  observed  that  the  judica- 
ture act,  1873,  enacts  (s.  25,  subs.  8)  that  an  injunction  may 
be  granted  by  an  interlocutory  order  of  the  court  in  all  cases 
in  which  it  shall  appear  to  the  court  to  be  just  or  convenient 
that  such  order  should  be  made,  but  does  not  in  terms 
extend  this  wide  power  to  the  grant  of  injunctions  at  the 
trial.  It  seems,  however,  that  the  effect  of  the  above  enact- 
ment, read  in  connection  with  the  76th  section  of  the  same 
act  and  the  common  law  procedure  act,  1884  (sections  79,  81, 
^2),  is  to  give  the  court  an  unlimited  power  of  granting  an 
injunction  at  any  stage  of  any  case  where  it  would,  accord- 
ing to  sufficient  legal  reasons  or  on  settled  legal  principles, 
be  right  or  just  to  do  so.{7iy 

(a)  Williams  v.  Aylesbury  &  Buckingham  Lord  Nelson  v.  Salisbury  and  Dorset  June- 
Railway  Co.,  21  \V.  R.,  819;  Seton,  1331;  infra,  tion  Railway  Co.,  IC  W.  R,  1074. 
6  1149  Dieingulsh  Pell  v.  Northampton  and  (h)  Beddow  v.  Beddow,  9  Ch.  D..  89,  93;  Of. 
Banbury  Junction  Railway  Co.,  L.  R.  3  Ch  ,  Thomas  v.  Williams,  14  Ch.  D.,  8T3 ;  aiid  per 
100;  Latimer  v.  Aylesbury  and  Buckingham  Bacon  V.  O.  in  Dicks  v.  Brooks,  15  Ch.  D.,  25. 
Railway  Co.,  9  Ch.  D  ,  385;    and  consider 

1  Execution.']  Unless  the  complainant  has  a  good  defense  at  law,  and  was 
prevented  from  availing  himself  of  the  same  by  mistake,  suprise  or  fraud, 
without  neo-lio-ence  on  his  part,  an  injunction  will  not  be  granted  to  restrain  the 
execution  ol  a  judgment.  Hill  v.  Reifsnider,  46  Md.,  555.  Where  the  judg- 
ment entered  is  contrary  to  an  express  agreement  between  the  parties,  an  in- 
junction will  be  granted.  Kent  v.  Ricards,  3  Md.  Ch.,  392.  A  clear  agreement 
was  violated.  Held,  that  an  injunction  would  be  granted.  Reily  v.  Miami 
Ex.  Co.,  5  Ohio,  333. 

Balance  of  equities.  ]  In  a  case  where  either  party  may  suffer  oy  the  granting 
or  withholding  of  an  injunction,  the  equitable  rule  appears  to  be  that  the  court 
must  balance  the  inconveniences  likely  to  be  sustained,  and  to  grant  or  withhold 


552        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

the  injunction   according  to  sound  discretion.     Gray  v.  Ohio  R.  R.  Co.,  1 
Grant,  412;  Rich.'s  App.,  57  Pa.  St.,  105. 

Bakince  of  proof  .]  Where  the  proof  is  so  equally  balanced  as  to  leaved  the 
contract  in  doubt,  this  will  furnish  sutlicient  cause  to  deny  the  applicationfor 
an  injunction.     Brown's  App.,  62  Pa.  St.,  17. 

Mdndatory  injunction.']  The  courts  grant  mandatory  injunctions,  in  this 
country,  with  great  reluctance.  Washington  Univ.  v.  Green,  1  Md.  Ch.,  97; 
Audenreid  v.  Phila.  and  Read.  R.  R.  Co.,  68  Pa.  St.,  370. 

Covenant  not  io  build  ]  Land  was  sold,  and  a  covenant  entered  into,  not  to 
erect  a  building  more  than  ten  feet  m  height;  an  injunction  was  granted  to  re- 
strain.    Clark  V.  Martin,  49  Pa.  St.,  289. 


WRIT   OF   NE   EXEAT.  553^ 


CHAPTER  III. 

OF   THE   WRIT    OF   NE   EXEAT. 

§  1136.  The  Court  of  Chancery  sometimes  issued  a  writ 
of  ne  exeat  in  suits  for  for  specific  performance,  (a)' 

§  1137.  It  is  conceived  that  this  writ,  though  not 
abolished,  will  in  future  probably  not  be  often  applied  for 
in  actions  of  the  kind  with  which  this  treatise  is  concerned  ; 
inasmuch  as,  under  the  present  practice,  it  is  not  likely  to 
be  issued  except  in  cases  where  the  party  applying  for  the 
writ  can  satisfy  the  court  on  all  the  points  on  which  proof 
is  required  by  the  provisions  of  the  6th  section  of  the 
debtors  act,  1869  ;(5)  under  which  if  the  plaintiff  in  any 
action  in  the  court  in  which,  before  the  year  1870,  the 
defendant  would  have  been  liable  to  arrest  proves,  at  any 
time  before  final  judgment,  by  evidence  on  oath  to  the 
satisfaction  of  the  judge,  that  the  plaintiff  has  good  cause 
of  action  against  the  defendant  to  the  amount  of  £50  or 
ui^wards,  and  that  there  is  probable  cause  for  believing  that 
the  defendant  is  about  to  quit  England  unless  he  be  appre- 

(a)  Raynes  V.  Wise,  2Mer.,  47->;  Blaydes  v.    Morris  v.  McNeil,  2  Rusb.,  604;  and  seeSeton, 
Calvert,  2  J.  &  W.,  211;  Boehm  v.  Wood,  T.    316.  1329. 
&  R.,  33-2;  Jenkins  v.  Parker,  2  My.  &  K.,  5;        ij>)  See  Drover  v.  Beyer,  13  Ch.  D  ,  242,  243. 


'  A  complainant  is  not  entitled  to  a  writ  of  ne  e-teat  on  a  bill  for  the  specific: 
performance  of  a  contract,  previous  to  the  time  at  Avhicli  tlie  contract  is  to  be 
performed,  and  before  any  right  of  action  has  accrued  thereon,  either  at  law 
or  in  equity,  against  the  defendant.  The  debt  must  be  shown  to  be  actually 
due.  De  Rivalinoli  v.  Consetti,  4  Paige,  264;  Brown  v.  Hati",  6  id.,  535.  It 
has  been  laid  down  that  a  writ  of  ne  exeat  cannot  be  granted,  unless,  1.  There 
is  a  precise  amount  of  debt  positively  due.  2.  It  must  be  an  equitable  demand, 
on  which  the  plaintiff  cannot  sue  at  law,  except  in  cases  of  account,  and  a  few 
others  of  concurrent  jurisdiction.  '6.  The  defendant  must  be  about  to  quit  the 
country,  proved  by  affidavits  as  positive  as  those  required  to  hold  to  bail  at  law, 
Rhodes  v.  Cousins,  6  Randolph,  ISy.  But  in  Alabama  the  rule  is  not  precisely 
the  same.  Writs  of  ne  exeat  may,  there,  be  properly  granted. in  the  following 
cases:  1.  Where  the  demand  is  exclusively  equitable,  whether  a  sum  certain  be 
due  or  not,  and  the  defendant  is  about  to  remove  beyond  the  jurisdiction  of  the 
court  2.  Where  the  courts  of  law  and  equity  have  concurrent  jurisdiction^ 
the  defendant  being  about  to  remove,  and  wheie  bail  has  not  been  obtained,  it 
will  be  granted  in  aid  of  the  action  at  law.  8.  Where  the  two  courts  have  con- 
current jurisdiction,  and  no  action  at  law^  has  been  commenced,  but  in  a  suit  in 
equity  mstituted,  the  removal  of  the  defendant  will  be  restricted.  4.  In  cases 
of  extreme  necessity,  and  where  it  becomes  necessary  to  prevent  a  failure  of 
justice.  The  fourth  clause  is,  however,  not  established  as  a  fixed  rule  of  law. 
Lucas  V.  Hinckman,  2  Stew.,  11. 


,554        FRY  OlSr  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

lieuded,  and  that  the  absence  of  the  defendant  from  England 
will  materially  prejudice  the  plaintiff  in  the  prosecution  of 
his  action,  the  judge  may  order  such  defendant  to  be 
arrested  and  imprisoned  for  a  period  not  exceeding  six 
months,  unless  and  until  he  gives  security  (not  exceeding 
the  amount  claimed  in  the  action)  that  he  will  not  go  out  of 
England  without  leave  of  the  court,  (c)' 

(c)  32  &  33  Vict.  c.  62,  8.  6;  cf.  Jud.  Act,  1873,  s.  76. 

1  Rule  in  this  country.']  This  is  a  writ  of  right,  rather  than  a  prerogative 
writ.  It  is  only  granted  in  cases  of  eq\iitable  debts  and  claims.  Seymour  v. 
Hazard,  1  John.'s  Ch.,  1;  Forrest  v.  Forrest,  10  Barb.,  46.  It  is  a  mesne  pro- 
cess, holding  the  party  to  equitable  bail;  it  commands  the  arrest  of  the  parly  if 
the  bail  is  not  furuished.  '  Adams  v.  Whitcomb,  46  Vt.,  708.  Until  the  party 
refuses  to  give  the  required  security  he  cannot  be  restrained  of  his  liberty. 
Bushuell  V.  Bushnell,  15  Barb.,  309. 

Writ  of  capias.  ]  In  Samuel  v.  Wiley,  5  N.  H. ,  353,  it  was  held  that  the 
power  of  a  court  of  equity  independently  of  any  statute  to  obtain  security  for 
the  performance  of  its  decree  by  ordering,  by  a  writ  of  capias,  the  arrest  of  a 
party  intending  to  leave  the  State  to  avoid  such  decree  is  analogous  to  the 
practice  pertaining  to  the  writ  of  Jie  exeat, 

AitMchment.']  The  remedy  may  be  by  an  order,  that  the  party  within  a  given 
time  give  security,  and  upon  default  an  attachment  will  issue  for  contempt. 
Attorney  General  v.  Macklow,  1  Price,  289. 

JVo  adequate  remedy  at  laic.']  In  order  that  the  writ  may  be  granted  it  must 
be  affirmatively  shown  that  there  is  no  adequate  remedy  at  law.  Orme  v.  Mc- 
Phersou,  36  Ga.,  571. 

Courts  of  concurrent  jurisdiction.]  Such  courts  will  not  refuse  this  writ 
merely  because  the  plaintiff  has  a  remedy  at  law.  Lucas  v.  Hickman,  2  Stew., 
11;  Mackdonough  v.  Gaynor,  18  N.  J.  Eq  ,  249. 

Certainty.]  The  demand  must  be  capable  of  being  reduced  to  a  certainty. 
Whitehouse  v.  Partridge,  3  Swaust.,  365;  Bonesteal  v.  Bonesteal,  28  Wis., 245. 

Fraud  must  be  sJtoion.]  Where  this  is  not  done,  and  the  action  is  not  of  an 
equitable  nature,  this  writ  will  be  refused.     Malcolm  v.  Andrews,  168  111.,  100. 

Where  the  contingency  might  never  happen,  the  writ  was  refused.  Anon.,  1 
Atk.,  521. 

Partnership  settlements.]  The  defendant  had  sold  all  his  ])roperty  and  was 
threatening  to  leave  the  State;  he  refused  a  partnership  settlement.  Held,  that 
this  writ  was  properly  issued.  Dean  v.  Smith,  23  Wis.,  488;  Myer  v.  Myer, 
25  N.  J.  Eq.,  28. 

Rule  in  Arkansas.]  In  this  State  this  writ  is  allowed  by  statute  in  cases  of 
executory  contracts,  and  the  time  for  performance  has  not  arrived,  if  the  com- 
plainant entered  into  the  contract  in  good  faith  and  without  notice  on  the  part 
of  the  defendant  that  he  intended  to  leave  the  State.  Gresham  v.  Peterson,  25 
Ark.,  377. 


RELIEF    AFTER   JUDGMENT.  655 


CHAPTER  IV. 

OF   RELIEF   AFTER   JUDGMEl^T. 

§  1138.  It  may  and  not  unfrequently  does  happen  that, 
after  judgment  has  been  given  for  the  specific  performance 
of  a  contract,  some  further  relief  becomes  necessary,  in  con- 
sequence of  one  or  other  of  the  parties  making  default  in 
the  performance  of  something  which  ought  under  the  judg- 
ment to  be  performed  by  him  or  on  liis  part;  as,  for 
instance,  where  a  vendor  refuses  or  is  unable  to  execute  a 
proper  conveyance  of  the  property,  or  a  purchaser  to  pay  the 
purchase-money.  The  character  of  the  consequential  relief 
appropriate  to  any  particular  case  will  of  course  vary 
according  to  the  nature  of  the  subject-matter  of  the  con- 
tract and  the  position  which  the  applicant  occupies  in  the 
transaction  ;  but  in  every  case  the  application  must,  under 
the  present  practice,  be  made  only  to  the  court  by  which 
the  judgment  was  pronounced, (a)  and  the  multiplicity  of 
legal  proceedings  which  sometimes(5)  occurred  before  the 
fusion  of  the  jurisdictions  of  the  Courts  of  Chancery  and 
common  law  is  now  practically  impossible. (c)' 

(a)  Jud.  Act,  1873  (36  &  37  Vict.  c.  66),  8.  24  722;  Ford  v.  Compton,  1  Cox.  296;  Reynolds 

(5) ;    xppell.  Juris.  Act,  ISie  C39  &  40  Vict.  c.  v.  Xelson,  6  Mad.,  29i);  Frauk  v  Basuelt,  2 

59),  «.  17.  My.  &K.,618. 

(6)  Plielp«  V.  Prothero,  7  De  G.  M.  &  G.,  (c;  Jud.  Act,  1873,  8.  24  (/). 

1  It  is  well  settled  that,  while  proceedings  are  pending  in  the  court  of  chan- 
cery, all  applications  to  other  courts  are  looked  upon  with  jealousy.  It  is  a 
rule  thoroughly  established,  that  chancery  will  administer  complete  redress  to 
the  parties,  and  this,  though  in  its  progress  it  may  decree  on  a  matter  which 
was  cotruizable  at  law.  Where  equity  can  do  complete  justice  between  the 
parties,lt  will  never  turn  them  out  of  court  to  pursue  their  remedy  at  law. 
Cathcart  v.  Itobinson,  5  Pet.,  263;  Beardsley  v.  Halls,  I  Koot,  86G;  .Milter  v. 
McCanu,  7  Paige,  457;  Chinn  v.  Heale,  1  Munf.,  «:{;  McHaven  v.  Forbes.  (5 
How.  (Miss  ),  otiy;  Hume  v.  Long,  6  Monr.,  116;  Miami  Exporting  Co.  v.  United 
States  Bank,  Wright,  249;  Oliver  v  Pray,  4  Ham.,  175;  Brown  v.  Gardner, 
Harring.'s  Ch.,  291;  Hawley  v.  Sheldon,  id.,  420.  So  where  a  bill  was  tiled 
against^'a  mortgagee,  who  was  also  lessee  of  the  mortgaged  premises,  to  obtain 
a1?et-off  of  the  rent  against  the  amount  due  on  the  mortgage,  the  bill  was  re- 
tained to  compel  paynient  of  the  rent,  though  the  plaintiff  failed  to  support  his 
claim  of  set  off.  Walcott  v.  Sullivan,  1  Edw.'s  Ch.,  339.  Again,  where,  on  a 
bill  by  a  vendor  to  enforce  the  specilic  performance  of  a  contract  for  the  sale  of 
land,  it  appeared  that  by  the  contract  the  vendee  had  the  right  to  relieve  him- 
self from  the  purchase  by  paying  a  stipulated  sum,  it  was  held  that  the  right  of 
the  vendor  to  come  into  equity  for  a  specific  performance  being  clciir,  the  court, 
in  refusing  to  decree  such  specific  performance,  might  decree  the  payment  by 


556        FRY  ON  SPECIFIC  PEKFOKMANCE  OF  CONTRACTS. 

§  1139.  There  are  two  kinds  of  relief  after  judgment  for 
specific  performance  of  whicli  eitlier  party  to  the  contract 
may,  in  a  iDroper  case,  avail  himself. 

ti  1140.  (1)  He  may  obtain  (^on  motion  in  the  action)  an 
order  ai)pointing  a  definite  time  and  place  for  the  comple- 
tion of  the  contract  by  payment  of  the  unpaid  purchase- 
money  and  delivery  over  of  the  executed  conveyance  and 
title  deeds, (<:Z)  or  a  period  Avithin  whicli  the  judgment  is  to 
be  obeyed,  and,  if  the  other  party  fails  to  obey  the  order, 
may  tliereupon  either  at  once  issue  a  writ  of  sequestration 
against  the  defaulting  party's  estate  and  effects, (e)  or,  if  the 
default  was  in  some  act  other  than  or  besides  the  payment 
of  money,  may  move,  on  notice  to  the  defaulter,  for  a  writ 
of  attachment  against  him.(/)  Indeed,  in  a  case  where  a 
person  who  had  agreed  to  accei)t  a  lease  would  not,  though 
ordered  by  the  court  to  do  so,  execute  the  lease,  it  was  held 
that  an  attachment  was  the  only  means  to  which  the  court 
could  resort  for  enforcing  such  execution.  (/7) 

§  1 141,  (2)  He  may  aj^ply  to  the  court  (by  motion  in  the 
action)  for  an  order  rescinding  the  contract.  On  an  appli- 
cation of  this  kind,  if  it  appears  that  the  party  moved 
against  has  positively  refused  to  complete  the  contract,  it& 
immediate  rescission  may  be  ordered  :  otherwise,  the  order 
will  be  for  rescission  in  default  of  completion  within  a  limi- 
ted tmi(i:{k)  and  the  court  will  decline  to  order  the  deposit 

((Z)  Morley  V.  Clavering,  30  I5eav.,  108;  Dor-  under  the    Debtors  Act,    1869;    and    Order 

lins  V.  Evautf,   belore  Bacon,  V.  C,  18  July,  XLIV.  r  2. 

1878  (cited  Seton,  132S).  (.91  Grace  v.  Baynton,  25  W.  R.,  5n6 

(6)  Order  XLVII.    r.   1.    Cf.    the  Debtors  (A)  Foligno  v.  Martin,  16  lieav..  586;  Simp- 
Act,  1869,  s.  8.  son  V.  Terrv,34  Beav.,  423;  Clark  v.   Wallie, 

(/)  .^ee  Uule  6  of  the  Order  (7th  Jan.  1870),  35  Beav.,  4(50;  llenty  v.  Schroder,  12  Ch.  D., 

666. 

the  vendee  of  such  stipulated  sum  to  the  vendor,  although  the  vendor  might 
have  received  the  same  at  law.  Cathcart  v.  Hobinsou,  5  Pet.,  2(i3;  Long  v. 
]\IcMillan,  5  Dana,  484,  is  an  authority  of  similar  nature  In  that  case  the  de- 
fendant denied  fraud,  alleging  that  through  mistake  he  had  not  received  suffi- 
cient credit;  and  it  "was  held  that  although  the  remedy  was  complete  at  law, 
yet,  as  the  subject  matter  of  the  bill  and  cross-bill  were  connected  the  court 
might  take  jurisdiction.  Upon  the  same  general  principle,  where  a  note  was 
made  payable  in  the  year  "one  thousand  eighteen  hundred  and  thirty-six"  by 
mistake  for  IH'dQ,  it  was  held  that  chancery  would  correct  the  mistake  on  a  bill 
for  that  purpose,  and  having  obtained  jurisdiction  for  that  purpose  would 
enforce  payment  of  the  note.  Savage  v.  Berry,  2  Scam.,  545.  And  though, 
chancery  will  not  rever.se  the  judgment  of  a  court  of  law,  nor  decide  against  a 
point  decided  in  such  court,  they  will,  neveitheless,  hear  the  same  subject  of 
controversy  upon  grounds  not  litigated  at  law,  either  for  want  of  legal  testi- 
mony, s\ipplied  in  chancery  by  the  party's  oath,  or  because  it  was  a  subject  of 
equity  jurisdiction  only,  or  perhaps  lor  other  causes,  and  enjoin  the  judgment 
at  law;  even  though  the  grounds  may,  at  the  time  of  the  injunction,  be  cog- 
nizable at  law,  if  they  were  not  so  considered  by  the  courts  of  law  when  the 
judgment  was  rendered  and  the  bill  brought.     Dana  v.  Nelson,  1  Atk.,  252. 


RELIEF   AFTER   JUDGMENT.  557 

to  be  returned  to  a  defaulting  purchaser.  (/)  An  order  for 
the  defendant  to  pay  the  phiintiff's  costs,  and  a  stay  of 
further  proceedings  in  the  action,  may  also  be  obtained  on 
this  motion. 

§  1143.  In  some  cases  the  order  has  expressly  excepted 
from  the  stay  of  proceedings  any  application  to  the  court 
to  award  and  assess  damages  sustained  by  the  plaintilrs  by 
reason  or  in  consequence  of  the  breach  of  the  contract. 0) 

In  Henty  V.  Schroder,  (^O  however,  Jessel,  M.  R.,  declined 
to  make  this  exception,  considering  that  the  plaintiffs  could 
not  at  the  same  time  obtain  an  order  to  have  the  contract 
rescinded  and  claim  damages  for  the  breach  of  it.  If  this 
be  so,  it  would  seem  that  in  many  cases  the  court  must  fail 
to  give  the  iDlaintiff  the  full  measure  of  relit-f  requisite  for 
replacing  him  in  the  position  in  wdiich  he  stood  before  the 
contract, — the  payment  for  instance,  of  expenses  incurred 
b}^  him  in  showing  his  title. 

§  1143.  The  vendor  has  in  many  cases  another  form  of 
relief  open  to  him  after  a  judgment  for  specihc  performance, 
in  the  enforcement  of  his  lien  for  unpaid  purchase-money, 
with  interest  and  his  costs  of  the  action. 

§  1144.  ''Although,"  said  Bacon,  Y.  C.,{1)  "the  rule  of 
law  upon  which  the  doctrine  of  an  unpaid  vendor's  lien  de- 
pends must  be  very  frequently  influenced  by  the  particular 
circumstances  of  each  case  in  wdiicli  it  is  said  to  arise,  there 
is  one  piain  principle  which  guides  and  governs  its  applica- 
tion in  all  cases.  If  it  be  ex^Dressed,  or  can  be  safely  and 
j)roperly  inferred  from  documentary  or  other  evidence,  or 
from  the  nature  of  the  contract,  that  it  was  the  intention  of 
the  parties  that  the  s?Je  or  transfer,  however  absolute  in  its 
terms,  was  subject  to  the  condition  that  the  purchase  mpney 
should  be  paid,  or  that  the  thing  contracted  to  be  done  by 
the  vendee  should  be  performed,  the  lien  will  prevail.  If, 
on  the  other  hand,  no  such  inference  can  be  properly  drawn, 
if  the  performance  of  the  thing  contracted  to  be  done  by  the 
vendee  was  not  the  condition  uj^on  which  the  transfer  was 
made,  but  the  engagement  to  do  the  thing  was  the  consid- 
eration for  the  transfer,   the  vendor,  having  accepted  that 

(t)  Dunn  V.  Vere,  19  W.  K.,  151.  (k)  12  Ch.  D.,  666. 

Ij)  Sweet  V.  Mereaith,  4  Giff.,20T;  Watson  (l)  lu  Ke  Albert  Life  Insurance  Co.,  L.  B. 

V.  Cox,  L.  K.  15  Eq.,  219.    See  too  Corpora-  11  Kq.,  178. 
tlon  of  Hythe  v.  East,  L.  R.  1  Eq..  630. 


568         FRY  ox  SPECIFIC  PEKFOKMAXCK  OF  CONTRACTS. 

engagement,  lias  the  very  thing  he  bargained  for.  and  can- 
not say  that  the  consideration  has  not  passed  to  him.  In 
such  cases  the  lien  cannot  prevail.  The  rale  I  have  men- 
tioned and  its  application  cannot  be  more  pointedly  illus- 
trated nor  more  clearly  explained  than  in  the  judgment  of 
lord  Cranworth  in  Dixon  v.  Gayfere."(m) 

§  1145.  Where  this  lien  exists,  a  vendor  obtaining  judg- 
ment for  the  speciiic  performance  of  a  contract  for  the  sale 
of  hereditaments  of  any  tenure  may  have  embodied  in  the 
judgment  a  declaration  of  the  lien,  and  a  clause  giving  him 
liberty  to  apply  to  the  court,  in  case  of  need,  for  its  enforce- 
ment.(n)  Then,  if  default  in  payment  of  the  moneys  pay- 
able under  the  judgment  by  the  purchaser  ensues,  the 
vendor  may  have  further  relief  in  some  or  all  of  the  follow- 
ing ways  as  occasion  may  require,  viz.: — 

(1)  By  sale  of  the  propecty. 

(2)  By  the  appointment  of  a  receiver  pending  the  sale. 
(B)  By  means  of  an  injunction  operating  to  restore  to  him 

the  possession  of  the  property. 

§  114®.  (1)  Upon  the  vendor  satisfying  the  court  that 
the  purchaser  has  made  default  in  payment  of  the  moneys 
directed  by  the  judgment  to  be  paid,  an  order  will  be  made, 
on  motion  or  petition  in  the  action,  for  the  sale(6»)  by  the 
court  of  the  property  comprised  in  the  contract,  and  the 
vendor  may  have  liberty  to  hid.{p)  The  proceeds  of  the 
sale  will  be  directed  to  be  paid  into  court,  and  leave  will  be 
reserved  to  the  vendor  to  apply  in  chambers  for  pay- 
ment. (2) 

§  1147.  A  vendor  of  land  to  a  railway  company  is,  with 
respect  to  his  right  to  such  an  order,  in  no  different 
position  from  any  other  vendor,  and,  if  the  company  fail 
to  pay,  is  entitled  to  have  the  land  sold,  although  the  rail- 

(m^  1  re  G  &  J..  655.    See  further  Mack-  Watfoni  and  Rlckmansworth  Railway  Co., 

reih  V.  Symmons.  1.'.  Ves.  329.  and  the  note  36  L.  J.  Ch.,  379,  an  immediate  sale  was  di- 

on  thatcase  In  1  W.  &  T.   Lead.  C.  (4ili  e<l.),  recteu. 

2S9-and  cf  Mycocli  v.   Jieatson,   13  Cli  D.,  (o)  Munns  v.  Isle  of  Wight  Railway  Co.,  L. 

3g^'              ■     •'  R.  5  Ch.,  414;   Williams  v.  Aylesbury  and 

(n)  Hf  ath  v  Metropolitan  Railwv  C,  cited  Buckingham   Railway  Co.,  21  W.   U.,    819; 

Seton    1330-   Walker  v    Ware   Hadham  and  LyceUv.^tHfford  and  Uttoxeter  Railway  Co., 

liuntiDKford   Railway   Co.,  L.  R.    1  Eq.,  195;  L.  R.  13  Eq.,  261. 

Vyner  v  Hoylake  Railway  Co.,  17  W.  R..  92;  (j?)  Lycett  v.  .Stafford  and  Lttoxeter  Rail- 
Wing  v.  Totenham  and  Hampstead  Junction  way  Co,  L.  R.  13  Eq.,  261;  Warev^Ayles- 
RallwavCo.,L,  R  3Ch.,741;  Muuns  v.Isleof  bury  and  Buckingham  Railway  Co.,  21  \\  .  K  , 
WIeht  Railwav  Co.,  L.  K.  5  Ch.,  414;  Bee  v.  bl9. 

Stafford  and  Uttoxater  Railway  Co.,  23  W.  (5)  Vyner  v.  Hoylake  Railway  Co.,  cited 

R.  S6S;  Keaue  v.  Athenrv  and  Enni.s  Junction  Seton,  1331. 
Railway  Co.,  19   W.  R.,"43.     In  Sedgwick  v. 


RELIEF   AFTEIl   JUDGMENT.  559 

way  may  have  been  actually  made  and  may  be  ready  or  even 
opened  for  traffic,  (r) 

§  1148.  (2)  Where  profit  is  capable  of  being  made  of 
the  property  pending  the  sale,  that  profit  ought  to  be 
made.  (5)  The  court  Avill  accordingly,  in  a  proper  case,  upon 
the  vendor's  application,  appoint  a  receiver  of  the  property 
and  direct  the  defaulting  purchaser  to  let  him  immediately 
into  possession. (^) 

§  1149.  (0)  In  a  case  that  came  before  Lord  Selborne, 
two  attempts  to  sell  the  subject-matter  of  the  contract — laud 
of  which  the  purchasers,  a  railway  company,  had  taken  po- 
session  and  over  which  tht^y  had  constructed  their  railway — 
having  proved  abortive,  his  lordship,  on  the  application  of 
the  vendor,  discharged  the  order  for  sale  and  directed  the 
defendants  within  a  month  to  pay  the  unpaid  purchase- 
money  with  interest  into  court;  and  the  order  went  on  to 
direct  that,  in  default  of  such  payment  into  court,  an  in- 
junction should  be  awarded  restraining  the  defendants  from 
running  trains  over  the  land  and  from  continuing  in  posses- 
sion of  the  land,  and  that  the  vendor  should  be  put  in 
possession  of  the  land.('Zi) 

§  11^0.  In  a  previous  case  Lord  Romillj^  M.  R.,  finally 
ordered  a  writ  of  assistance  to  issue  to  put  the  vendor  in 
possession  of  the  lands  comprised  in  the  contract. (^) 

§  1151.  Lastly,  a  purchaser  who  has  obtained  a  judg- 
ment in  his  favor  for  the  specific  performance  of  a  contract 
concerning  land  may,  if  for  any  reason  he  cannot  otherwise 
get  a  proper  and  complete  conveyance  of  the  purchased 
property,  apply  to  the  court  for  an  order  vesting  it  in  him 
or  appointing  some  one  to  convey  it  to  him,  with  a  release, 
where  necessary,  of  contingent  rights. (zo) 

(r)  Winjr   t.    Totenhara    and    Hampstead  ()/)  Williams  v.  Aylesbury  and  Hucking- 

Junction    Railway   Co.,    L.  K.  3  Ch  ,    741;  hani  Railway  Co.,  21  W.  R  ,  Si9;  S.  C.  (flnal 

Keane  v.  Athenry  and  Ennis  Junction  Rail-  order).  Scton,  13:il. 

wayCclOW.R  43;  Earl  of  Jersey  v.  South  (v)  Vyner  v.  Iloylake  Railway  Co.,  clttd 

Wales  Mineral  Railway  Co.,  19  L.  T.  N.  S.,  Seton.  1331. 

446  {w)  Trustee  Act,  1850  (13  &  14  Vlct.  c  60), 

(s)  Per  Giffard,  L.  J.,  in  Munna  v.  Isle  of  s.  30.  For  cases  under  this  section  see  Seton, 

Wight  Railway  Co.,  L.  R.  5  Oh.,  419.  5'28-o31.    The  application  is  usually  by  sum- 

{t)  Munns  v  Isle  of  Wight  Railway  Co  ,  mons.  Cons.  Onl  ,  XXXV..  r.   1,\4);  but  in 

L.  R.  f)  Ch.,  414;    Ware  V.    Aylesbury  and  Wellesley  v.  Wellesloy,  4  l>e  G.  M.  &  (j.,537,. 

Buckingham  Railway  Co.  21  W.  R.  819.  Dis-  the  order  was  niudc  on  a  petition. 
tinguish  Latimer  v.  Aylesbury  and  Bucking- 
ham  Railway  Co.,  9  Ch.  D.,  385. 


560        FRY  ON  SPECIFIC  PEIIFORMANCE  OF  CONTRACTS. 


PART  V. 

OF  INCIDENTAL  MATTERS. 


•       CHAPTER  I. 

OF   CONDITIONS   OF   SALE   AND    rAPvTICULAES. 

§  1 153.  The  conditions  of  sale  subject  to  wMch  property- 
is  sold  constitute  part  of  the  contract.  Particular  con- 
ditions of  sale  are  considered  in  several  other  parts  of  this 
treatise.  («)  But  it  will  be  desirable  here  briefly  to  state  the 
general  principles  upon  which  the  court  acts  in  construing 
conditions. 

§  11*53.  It  is  to  be  observed,  in  the  first  place,  that  the 
circumstances  connected  with  the  title  and  character  of  the 
property  are,  of  course,  in  the  knowledge  of  the  vendor 
rather  than  of  the  purchaser  ;  and  secondly  that,  subject  to 
any  stipulation  to  the  contrary  in  the  contract,  the  legal  right 
of  a  purchaser  is  to  have  a  good  title,  according  to  the  rules 
laid  down  in  the  vendor  and  purchaser  act,  1874,  and  an 
estate  free  from  all  incumbrances  ;{b)  and,  therefore,  that 
conditions  tending  to  give  the  purchaser  less  than  this  are 
in  restraint  of  a  legal  right,  (c) 

§  1154.  Proceeding  on  these  principles,  the  courts  have 
held  that  it  is  incumbent  on  the  vendor  to  express  himself 
wdth  reasonable  clearness,  and,  in  the  case  of  sales  by 
auction,  so  to  state  his  plans,  particulars,  and  conditions  of 
sale  as  to  convey  clear  information  to  the  class  of  persons 
who  ordinarily  frequent  auctions.  (cZ)  If  the  vendor  uses 
terms  reasonably  capable  of  misconstruction  or  ambiguous 
w^ords,  the  purchaser  is  not  bound  to  take  on  himself  the 

(a)  E.  K.  §§  11123  et  seq.  (rescission),  1046  et  to  title,  see  Jones  v.  Clifford,  3  Ch.  D.,  779; 

seq    (tinie"l 2114-31  and  1251-Gl  (compensa-  Wadclell  v    Wolle,  L.  R.  9  Q.  B.,  515;  and 

tion),  1287-97    (title).    See,    also,    St.  Leon,  infra,  §  1287  et  seq. 

Vend    ch  i    8  2.  (d)  Gibson  v.  d'Este,  2  Y.  &  C.  C.  C,  542, 

(6)  Phillips  V.  Caldcleuqh,  L.  R.  4  Q.  B.,  558-9;  Dykes  v.  Blake,  4  Bing.  N.  C,  463,  476. 

159;  (iatayes  V.  Flather,  34Beav.,38S.  See,  too,  per  Lord  Westbury  m  Cordiugley 

(c)  As  to  conditions  precluding  inquiry  as  v.  Cheeseborough,  4De  G.  F.  &  J.,  381. 


CONDITIONS   OF   SALE   AND   PAETICULABS,  561 

peril  of  ascertaining  the  true  meaning  of  the  statement,  (e) 
"but  may  generally  construe  it  in  the  manner  most  advan- 
tageous to  himself :(/)  and  it  may  be  gathered  from  the 
case  of  Taylor  v.  Martindale(,^)  that,  where  a  condition  of 
sale  is  so  obscurely  worded  that,  taken  in  connection  with 
the  particulars,  it  is  likely  to  mislead  an  ordinary  person  as 
to  the  nature  of  the  property,  the  court  will  on  that  ground 
alone,  and  even  on  the  argument  of  a  summons  to  vary  the 
certificate  as  to  title,  discharge  a  purchaser  from  his 
bargain. 

§  1155.  The  case  of  Torrance  v.  Bolton(7i)  affords  a 
notable  illustration  of  this  principle.  There  the  adver- 
tised particulars  described  property  about  to  be  offered  for 
sale  as  an  absolute  immediate  reversion  of  a  freehold  estate, 
to  fall  into  x)ossession  on  the  death  of  a  lady  in  her  70th 
year,  and  no  conditions  of  sale  were  issued,  but  just  before 
the  auction  the  auctioneer's  clerk  read  out  from  a  manu- 
script a  string  of  conditions,  in  one  of  which  the  property 
was  stated  to  be  [subject  to  three  mortgages,  and  it  was 
stipulated  that  the  purchaser  should  take  a  conveyance 
subject  to  them.  On  the  purchaser  proving  that  he  bought 
without  distinctly  hearing  or  understanding  the  effect  of 
this  condition,  it  was  held  by  the  court  of  appeals  in 
chancery  that  he  was  entitled  to  have  the  contract  rescinded, 
on  the  ground  that  the  description  in  the  j)articulars  was 
misleading,  and  onus  was  therefore  on  the  vendor  to  show 
(which  he  failed  to  do)  that  the  purchaser  was  not  actually 
misled. 

§  1156.  Again  where,  on  a  sale  by  auction  in  four  lots 
of  leaseholds  in  Liverpool,  it  appeared  from  the  particular 
and  conditions  that  three  of  the  four  lots  were  held  under 
the  corporation,  upon  whose  leases  there  is  usually  only  a 
nominal  rent  reserved  ;  ^and  as  to  the  fourth  lot,  the  par- 
ticular stated  the  rents  at  which  the  houses  comprised  in  it 
were  underlet,  and  that  it  was  subject  to  a  mortgage  for 
£500,  but  by  an  accidental  slip  neither  particular  nor  con- 
dition mentioned  the  fact  that  the  lots  was  subject  to   a 

(e)  Martin  v.    Cotter,  3   Jon.    &  I..,    496;  (£j)  1  Y.  &  C.  C.  C,  658.    Cf.  Jones  v.  Rim- 
Graves  V.  SVilson,  25  Beav.,  29U.  Cf.  Torrance  nier,  14  Oh.  D.,  588. 
V.  Bolton,  L.  R.  S  Ch.,  US.  (ft)  L.  R.  8  Ch.,  n9.    Cf.  Re  Arnold,  14  Ch. 

(/)  Seaton  v.  Mapp,  2  Coll.,  556.      See,  too,  D.,  27C, 
<5eoghegan  v.  Connolly,  8  Ir.  Ch.  R.,  598,  603; 
Gardiner  v.  Tate,  I.  R.  10  C.  L.,  460. 

36 


562        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

ground  rent  of  £43,  175.  Q>d. ;  upon  the  purchaser  of  this 
lot  applying  to  be  discharged  from  his  purchase,  deposing 
that  he  had  bought  under  the  belief  that  the  property  was 
not  subject  to  any  ground-rent,  it  was  held  that  he  was 
entitled"  to  be  discharged  with  costs.  (/)  ' '  The  real  question 
J  think,"  said  Jessel,  M.  R.,  "is,  is  this  a  fair  particular  ; 
is  it  one  in  which  a  purchaser  is  told  wiiat  he  has  to  buy, 
so  as  to  enable  him  to  form  an  idea  of  the  value  of  the 
thing  to  be  purchased.  *  *  *  No  doubt  the  purchaser, 
if  he  had  been  a  careful  purchaser,  would  have  inquired. 
But  is  it  for  the  vendor  who  sends  out  such  a  statement  as 
this  of  the  nature  of  the  property  to  say  that  the  purchaser 
only  was  careless  ?  I  think  the  vendor  also  was  careless. 
It  cannot  be  said  to  be  a  fair  mode  of  drawing  a  particular 
of  sale  of  leasehold  houses  subject  to  a  ground-rent  of  £43  a 
year,  to  say  nothing  about  the  rent." (J) 

§  1157.  So  where  there  was  an  ambiguity  as  to  whicb 
of  tw^o  leases  was  referred  to,  the  purchaser's  construction 
w-as  admitted  by  the  court,  and  the  bill  dismissed.  (^•)     So  a 
condition  that  no  title  should  be  called  for  prior  to  a  lease 
was  not  held  so  explicit  as  to  preclude  inquiry  into  dealings 
with  the  contract  for  the  lease  wiiich  had  taken  place  prior 
to  its  being  granted.  (Z)     And   where   a   vendor   selling  a 
reversionary  estate  stipulated  that  a  statement  in  a  deed  of 
1836  that  a  life  annuity  had  not  been  paid  for  eight  years, 
and  a  declaration  by  the  vendor  that  no  claim  had  been 
made  on  him  since  1841,  and  that  he  believed  the  annuity 
had  not  been  claimed  for  the  last  twenty  years,  should  be- 
conclusive  evidence  that  the  annuity  had  determined  ;  and 
it   appeared   that  the   annuity   w^as  granted  by   a  person 
entitled  only  in  reversion,  and  was  granted  for  the  life  of 
the  survivor  of  four  persons  ;  it  was  held  that  the  descrip- 
tion of  it  as  a  life  annuity  was  likely  to  lead  to  the  belief 
that  the  annuity  w^as  for  one  life  only,  and  that  the  omission 
to  state   the  facts   disentitled  the  vendor  to   specific  per- 
formance, (m)    And  so,   again,    where  property  sold  was 
described  as  subject  to  articles  of  agreement,  bearing  date 
1804,  for  a  lease  for  four  lives  and  one  year,  and  in  fact  the 

(i)  Jones  v.  Rlmmer,  14  Ch.  D.,  588.  (I)  Rhodes  v.  Ibbetson,  4  DeG.  M.  &  G.,  787. 

(j)  14  Ch.    D.,    591,    592.    See    Sheard  v.        (m)  Drvsdale  v.  Mace,  2  Sm.  &  Gif.,  225, 

Tenables,  15  W.  R.,  1166.  affirmed  '5  De  G.  M.  &  G.,  103;  cf.  Geoghegan. 

(ft)  Seaton  v.  Mapp,  2  Coll.,  556.  v.  Connolly,  8  ir.  Ch.  R.,  598. 


CONDITIONS    OF   SALE   AND   PAKTICULARS.  563 

terms  of  the  agreement  were  such  that  the  lives  were  not 
named  until  1845,  this  was  considered  so  ambiguous  as  to 
amount  to  an  objection  to  the  performance  of  the  con- 
tract. (?i) 

§  1158.  In  Phillips  v.  Caldcleugh(o)  the  plaintiff  con- 
tracted to  buy  a  house,  described  in  the  particulars  as  "a 
freehold  residence,"  subject  to  conditions,  one  of  which  was 
that  the  abstract  should  commence  with  a  conveyance 
of  April,  1860,  and  no  objection  should  be  taken  in  respect 
of  the  prior  title,  and  another  provided  that  if  any  error 
should  appear  to  have  been  made  in  the  particulars  it  should 
not  annul  the  sale.  The  abstract  of  the  deed  of  April,  1860, 
showed  it  to  have  been  a  conveyance  of  the  property,  sub- 
ject "so  far  as  the  same  premises  were  subject  thereto,"  to 
the  (unspecified)  covenants  and  conditions  on  the  guarantee' s 
part  contained  in  an  indenture  (not  abstracted)  of  March, 
1850.  It  was  held  that,  the  property  having  been  sold  as 
freehold,  neither  of  the  above  conditions  protected  the 
vendors  from  explaining  what  these  covenants  and  con- 
ditions were,  and  showing  that  the  property  was  unincum- 
bered by  them. 

§  1159.  The  inclination  of  the  courts  to  construe  con- 
ditions of  sale  strictly  is  shown  by  many  other  cases,  (p) 
but,  perhaps,  it  is  not  more  strongly  illustrated  by  any  than 
one  at  the  rolls,  where,  on  a  sale  of  leaseholds,  one  of  the 
conditions  stipulated  that  the  possession  under  the  lease 
should  be  deemed  conclusive  evidence  of  the  due  perform- 
ance, or  sufficient  waiver,  of  any  breach  of  the  covenants  in 
the  lease  up  to  the  completion  of  the  sale :  Lord  Romilly, 
M.  R.,  held  that  this  condition  covered  all  breaches  up  to 
the  date  of  the  contract,  but  not  a  breach  between  the  con- 
tract and  completion  for  which  the  lessor  was  entitled  to 
enter,  and  that  notwithstanding  the  express  words  "up  to 
the  completion  of  this  sale."(§')' 

(n)  Martin  v.  Cotter,  3  Jon.  &  L.,  496.   See,  Nowell,  25  L.  J.  Ch.,  709  (Kindersley,  V.  C  ); 

too,   Gardiner  v.  Tate,  I.    K.  10  C.   L  ,  460  Brumflt  v.  Morton,  3  Jur.  N.  S  ,  1198  (Stuart, 

where  an  equitable  interest  was  described  in  V.    C.);    Cox    v.   Coventon,   13    Beav.,  378; 

language  w^ich  might  naturally  be  read  as  Russell  v.  Harford,  L.  R.  2  Eq,  507  (construc- 

iniporting  a  legal  interest.  tlon  of  condition  as  to  rights  of  water  and 

(o)  L.  R  4Q.  B.,159.  easements-),  cf.  Brooks  v.  Drysdale,  3  O.  P. 

(]))   Southby  V.   Hutt,  2  My.   &  Cr  ,  207;  D,  52  (construction  of  the  word  "  covenant " 

Symonds  v.  James,  1  Y.   &  C.  C.  C,  487;  In  a  contract  for  sale);  and  .'^ee  §§1296,1297. 

Adams  V.  Lambert,  2  Jur.,  1078;  Cruse  v.  (q)  Howell  v.  Kightley,  21  Beav.,  331. 

'  Dykes  v.  Blake,  4  Bing.  (N.  C),  463,  is  a  case  in  point.  There  several  lots 
were  sold  by  number.     The  plaintiff  purchased  lots  Nos.  13  and  13.     In  lot 


564        l-llY  ON  SPECIFIC  PERFORMANCE  OF  CONTP.ACTS. 

§  1160.  Again,  wliei-e  one  of  the  conditions  stipulated 
tliat  all  objects  should  be  delivered  within  fourteen  daj^s 
from  the  delivery  of  the  abstract,  and  another  that  "if  the 
purchaser  shall  fail  to  comply  with  these  conditions  his  or 
her  deposit  shall  be  tliereupon  actually  forfeited  to  the 
vendors  ;"  and  after  the  expiration  of  the  fourteen  days 
the  purchaser  delivered  an  objection  showing  a  fatal  defect 
in  the  title  ;  the  ground  upon  which  the  majority  of  the 
court  proceeded,  in  holding  him  entitled  to  recover  his 
deposit,  was  that  the  latter  condition  did  not  apply  to  the 
case  of  vendors  unable  to  give  a  good  title. (r) 

§  1161.  Where  on  the  sale  of  leaseholds,  the  conditions 
provided  that  the  purchaser  should  have  possession  on  the 
14th  of  November,  all  outgoings  up  to  that  day  being  cleared 
by  the  vendors,  the  purchaser  was  held  to  be  entitled  to 
insist  that  an  apportioned  part  of  the  current  rent  from  the 
last  quarter-day  to  the  14th  of  November  was  an  "  outgo- 

(»•)  Want  V.  Stallibross,  L.  R.  8  Ex.,  175. 

No.  7  there  was  a  reservation  to  the  occupants  of  that  and  other  lots,  of  a  car- 
riage-way and  foot-path,  over  lot  No.  VS;  but  the  plans  and  particulars  did  not 
show  any  such  right  of  way :  the  lease  of  lot  No.  7  not  being  .at  the  place  of 
sale,  although  referred  to  by  the  descriptions  and  particulars.  It  was  held  that 
the  plaintiff  might  rescind  the  contract  in  toto,  the  agreement  being  entire. 
See,  also,  Adams  v.  Lambert,  2  Jur.,  1078;  Judson  v.  Wass,  11  John.,  526.  And 
a  vendor  will  be  held  to  make  good  his  descriptions  and  particulars  uncontrolled 
by  verbal  statements  made  at  the  time  of  the  sale  by  the  auctioneer.  Gurmis  v. 
Erhart,  1  H.  Bl  ,  289;  Olgivie  v.  Foljambe,  '3  Aleriv.,  53;  Rich  v.  Jackson,  4 
Bro.  C.  C,  514.  But  it  seems  that  declarations  so  made  are  admissible  as  evi- 
dence to  explain  the  written  terms  of  the  conditions  of  sale :  and  they  were  so 
admitted  in  Cannon  v.  Mitchell,  2  Dessau.,  320,  where  it  was  stated  publicly  by 
the  agent  of  the  vendor,  at  an  auction  sale  of  two  tide  mills,  and  also  by  the 
auctioneer,  that  the  stream  upon  which  the  mills  were  situated  was  to  be  kept 
open  for  the  use  of  both,  although  the  written  terms  of  sale  contained  no  such 
statement.  It  has  been  said  that  an  estate  cannot  be  too  minutely  described  in 
the  particulars:  for  although  it  is  impossible  that  all  the  particulars  relative  to 
the  quantity,  situation,  etc.,  should  be  so  specifically  laid  down  as  to  call  for 
some  allowance  when  the  bargain  comes  to  be  executed,  yet,  if  a  person,  how- 
ever little  conversant  with  the  actual  situation  of  his  estate,  will  give  a  descrip- 
tion, he  must  be  bound  by  that,  whether  conversant  with  it  or  not.  Although 
it  is  not  to  be  supposed  that  no  care  or  diligence  is  required  of  the  purchaser. 
If  every  nice  and  critical  objection  be  admissible,  and  sufficient  to  defeat  the 
sale,  it  would  greatly  impair  the  eflScacy  and  value  of  public  judicial  sales;  and, 
therefore,  if  the  purchaser  gets  substantially  the  thing  for  which  he  bargained, 
he  may  generally  be  held  to  abide  by  the  purchase,  with  the  allowance  of  some 
deduction  from  the  price  by  way  of  compensation  for  any  small  deficiency  in 
the  value,  by  reason  of  the  variation.  Pars.  Contr.,  vol.  1,  p.  415,  note  (t). 
See  Foley  v.  McKeon,  4  Leigh,  627.  It  appears,  further,  that  any  declaration, 
in  the  terms  of  the  sale,  that  such  sale  shall  not  be  avoided  by  any  misdescrip- 
tion of  the  property,  on  the  part  of  the  vendor,  will  be  without  effect,  and  the 
contract  may  be  rescinded,  if  the  variation  is  of  moment.  Duke  of  Norfolk  v. 
Wortley,  1  Camp.,  237;  Stewart  v.  Alliston,  1  Mer.,  26;  see,  also,  Robinson  v. 
Musgrove,  3  Mood  &  Rob.,  92;  see  post,  g  803. 


CONDITIONS   OF   SALE   AND   PARTICULAES,  565 

ing"  within  the  meaning  of  the  conditions.  (5)  And  a 
stipulation  tliat  purchasers  are  to  receive  "all  rents  and 
profits''  from  the  day  fixed  for  completion  has  been  held  to 
entitle  them  to  an  occupation  rent  from  the  vendors,  on  the 
latter  remaining  in  possession  after  that  day.(^) 

§  1162.  Thn  court,  construing  conditions  thus  strictly, 
will  not  by  implication  extend  the  terms  of  one  condition 
so  as  to  enlarge  another  beyond  what  it  actually  expresses. 
In  the  case  of  Southby  v.  'H.utt,{u)  the  interpretation  of  con- 
ditions in  this  respect  was  fully  considered.  There,  by  the 
conditions  of  sale,  the  vendor  agreed  to  deliver  an  abstract 
and  deduce  a  good  title,  except  as  to  part  of  the  estate 
acquired  under  an  inclosure,  as  to  which  he  was  not  to  be 
required  to  go  back  beyond  the  award  ;  and  by  a  subse- 
quent condition  it  was  stipulated  that  the  vendor  should 
deliver  to  the  largest  purchaser  all  deeds  in  his  custody,  but 
should  not  be  required  to  produce  any  other  deeds  than 
those  in  his  possession  and  set  forth  in  the  abstract :  and  it 
was  held  that  the  latter  condition  did  not  so  affect  the 
former  as  to  entitle  the  vendor  to  insist  on  verifying  his 
abstract  only  so  far  as  could  be  done  by  deeds  in  his  jdos- 
session,  but  that  the  purchaser  was  entitled  to  a  general 
verification.  And  so  a  condition  that  certain  specified  deeds 
only  should  be  given  up,  does  not  limit  the  title  to  be  shown 
to  that  disclosed  by  these  deeds.  (?^) 

§  1163.  On  the  same  principle  of  strict  construction, 
where  (as  commonly  hapjDens),  there  is  a  condition  that  all 
objections  to  the  title  are  to  be  taken  within  a  specified  num- 
ber of  days  from  the  delivery  of  the  abstract,  or  to  be 
deemed  waived,  and  that  time  shall,  in  that  respect,  be  of 
the  essence  of  the  contract,  the  time  will  not  begin  to  run 
against  the  purchaser  until  the  vendor  has  delivered  a  per- 
fect abstract,  (zo) 

§  1164.  It  is  a  natural  principle  of  interpretation,  that  a 
vendor  shall  never  be  allowed  to  avail  himself  of  the  con- 
ditions of  sale  for  the  purpose  of  acting  fraudulently.  The 
court  requires  good  faith  in  conditions  of  sale,  (a?)     Accord- 

(s)  Laws  V.  Gibson,  L.  R  1  Eq.,  135.  {v)  Dick  v.  Donald,  1  Bli,  N.  S  655. 

(«)  The   Metropolitan  Railway  Co    v.  De-  (to)  Hobson  v.  Bell,  2  Beav.,  17;  Want  v. 

fries,  2  Q.  B.  D.,  189.  387.  8talUbra?8,  L.  R.  8  Ex.,  175;  Cf.  Re  Jackson 

(u)  2  My.  &  Cr  ,  207;  Osborne  t  Harvey,  7  and  Oakshot,  U  Ch.  D.  851. 

Jur.,  229     See  also  Gabriel  v.  Smith,  16  Q.  (a;)  Per  TurBer.  L.  J.,  in  Dimmock  v.  Hal- 

B.,  847;  and  cf.  Lord  Westbury's  judgment  lett,  L.  R.  2  Ch.,  28. 
In  Cordingley  v.  Cheeeeborough,  4  De  G.  h\ 
&J.,384et  seq. 


566        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

ingly  a  condition  for  compensation   will   not  apply  where 
there  has  been  misrepresentation  ;(?/)  and  under  a  condition 
giving  the  vendor  a  power  of  rescission  in  case  of  any  ob- 
jections to  the  abstract,   he  will  not  be  permitted  fraudu- 
lently to  deliver  an  imperfect  abstract  to  which  objections 
would  necessarily  be  taken,  and  thereupon  avail  himself  of 
his  fraud  to  avoid  his  contract  by  means  of  this  condition.  (2) 
So  it  seems  that  a  condition  as  to  objections    to  title  being 
delivered  by  a  certain  time,  would  not  apply  where  there 
had  been  misrepresentation  ;(<x)  and  a  condition  not  drawn 
bo7id  fide,  but  intended  to   cover  difficulties  arising  from 
facts  uncommunicated,  will  not  preclude  the  purchaser  from 
taking  the  objection  which  it  is  designed  to  guard  against.  (&) 
§  1165.  Further,  though  there  may  have  been  neither 
fraud  nor  misrepresentation  on  the  vendor's  part,  the  court 
will  be  slow  to  allow  him  to  get  rid  of  an  inconvenient  but 
legitimate  requisition  by  means  of  a  condition  giving  him  a 
power  of  rescinding  the  contract.     Thus,  where  a  vendor 
contracted  to  sell  leasehold  property  under  a  bona  fide  belief 
that  there  was  no  charge  upon  it ;  and  the  condition  of  sale 
provided  that,  for  the  purpose  of  any  objection  or  requisi- 
tion, the  abstract   should  be   deemed  to   be  perfect  if   it 
supplied  the  information  suggesting  the  same  :  the  abstract 
delivered    contained   nothing  showing    or   suggesting   the 
existence  of  any  incumbrance,  but  during  the  investigation 
of  the  title  it  was  discovered  that  there  was  in  fact  a  mort- 
gage  on   the  property,    which   the   purchasers   thereupon 
required  the  vendor  to  discharge  :  it  was  held  that,  under 
the  circumstances,  the  vendor  was  not  entitled  to  rescind 
the  contract  under  one  of  the  conditions,  which  in  terms 
empowered  him  to  do  so  in  the  event  of  the  purchasers 
insisting  on  any  requisition  which  the  vendor  should  be 
unable,  or  on  the  ground  of  expense  should  decline,    to 
remove  or  comjoly  with.(c)     . 

§  1166.  A  condition  of  sale  may,  of  course,  without  any 
intentional  fraud  or  misrepresentation,  be  in  fact  misleading 
or  erroneous.     It  will  be  bad  as  misleading  if  it  require  the 

(«)  Stewart  v.   AUiston,   1   Mer.,    26.    Of.  339,  347.    Cf.  Boyd  v.  Dickson,  I.  R.  10  Eq.' 

Brownlle  v.  Campbell,  5  App.   C,  925,  936;  239.                                               oq  tj„„„    i^q 

and  Bee  infra  §  1217  (6)  Jackson  v.  Whitehead,  28  Beav.,  159 

(z)  Per  WaKram,  V.  C,  in  Morley  v.  Cook,  (c)  lie  J  ackeon  and  Oakthott.  14  Ch.  L)..  158. 

2  Ha.,  Ill ;  and  see  supra.  §  lu25  et  seq.  Cf.   Greaves  v.   VVilson,  25  Beav..  290;  Bow 

(o)  Price  v.  Macaulay,  2  De  G.  M.   &  G.,  man  v.  Hyland,  8  Ch.  D.,  588;  see  supra,  § 

1025  et  seq. 


CONDITIONS   OF   SALE   AND   PAKTICULARS.  ^67 

purchaser  to  assume  that  which  the  vendor  knows  not  to  be 
true  or  if  it  assert  that  the  state  of  the  title  is  not  accurately 
known  to  the  vendor,  when  it  in  fact  is  known  to  him.(^) 

§  1107.  On  this  principle,  where  one  of  the  conditions 
being  tluit  the  title  to  the  beneficial  ownership  should 
commence  with  the  will  of  A.  B.,  and  the  purchaser  should 
assume  that  A.  B.  was  at  his  death  beneficially  entitled  to 
the  property  in  fee  simple  free  from  incumbrances,  the 
abstract  showed  that  A.  B.  had  only  entered  into  a  contract 
for  the  purchase  of  the  property  with  persons  whose  title  to 
sell  was  doubtful,  and  had  not  paid  the  purchase-money,  it 
was  held  that  the  purchaser  was  not  bound  by  the  con- 
dition, (e) 

§  1168.  Where  conditions  state  facts  upon  which  they 
are  grounded,  these  facts  must  be  proved  (/) 

Where  the  vendor  states  facts,  and  then  states  that  the 
purchaser  shall  take  such  interest  as  the  vendor  under  such 
state  of  facts  has,  the  purchaser  is,  it  seems,  bound  to  take 
the  title  as  it  is  \{g)  but  where,  after  stating  facts,  the  con- 
ditions add,  as  a  positive  and  distinct  fact,  and  not  as  a  con- 
clusion of  law  from  l.he  preceding  circumstances,  that  the 
vendor  can  make  a  good  title  to  the  fee  :  as  this  title  may 
have  arisen  from  indepentent  sources,  the  purchaser  is  not 
bound  by  the  title  resulting  from  the  facts,  but  may  inquire 
generally  whether  the  vendor  can  make  out  a  good  title.  (7i) 

§  1 169.  With  respect  to  sales  by  the  court,  it  would  be 
going  t.oo  far  to  say  that,  in  such  sales,  the  conditions  are 
dealt  with  on  different  principles  from  those  which  obtain 
in  ordinary  cases.  But  the  court  is  scrupulously  careful 
not  to  strain  the  meaning  of  any  condition  framed  under  its 
authority,  (/)  nor  to  allow  a  purchaser  to  be  prejudiced  by 
any  such  condition  which  appears  on  examination  to  be 
misleading  or  unfair. 

§  1170.  Accordingly  where  property  had  been  sold  under 
a  decree,  subject  to  conditions,  one  of  which  provided  that 
no  requision  should  be  made  in  respect  of  a  certain  under- 

(d)  Re  Banister,  12  Ch.  D.,  131.  See  per  horn  v.  Penrose,  29  W.  B,  237  (condition  In- 
Jessel,  M.  K.,  in  Oamberwcll  and  South  volvlng  neither  siippressio  veri  nor  suggesUo 
I.ondon  lUiilding  Society  V.  llolloway,  13  Ch.  falsi).  _  „  „, 
1).  162  Distinguish  IMcnkhorn  v.  Peuroec,  (h)  Johnson  v.  Smiley,  \i  Beav.,  223.  Cf. 
29  \v    R    "37  Cox  v.  C'oventon,  31  Bcav  ,  3iS. 

(e)  Ha'nielt'v.  Baker,  L.  R.  20  Eq,  50.  (t)  E.  g.  Powell  v.  Powell,  L.  R.  19  Eq., 
(/)  Symonds  v.  James,  1  Y.  &  C  O.  C,  487.  422.  See  too  per  Jesse),  M.  R.,  in  Re  Arnold, 
(g)  Cf.  dmlthv.  Watte,  4 Drew.,  338;  Blenk-    14  Ch.  D.,273. 


568        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

lease  of  1852,  or  of  any  underlease  prior  to  1864,  and  it 
turned  out  that  another  underlease  (besides  that  of  1852) 
had,  to  tlie  vendors'  knowledge,  been  made  prior  to  1864, 
the  court  held  that  it  was  the  duty  of  the  vendors  to  give 
the  fullest  information  which  they  themselves  possessed  as 
to  the  title,  and  therefore  to  disclose  the  underlease  in  ques- 
tion, and  that  the  purchaser  was  entitled,  notwithstanding 
the  condition,  to  require  it  to  be  produced. (y) 

§  1 171.  So  in  another  case  of  sale  under  a  decree,  where 
the  conditions  (settled  by  one  of  the  conveyancing  counsel 
of  the  court)  stated  the  facts  correctly,  and  in  a  manner 
which  might  have  led  a  lawyer  to  the  inference  that  the 
vendor  had  no  title,  but  would  not  lead  an  ordinary  pur- 
chaser to  that  conclusion.  Lord  Romilly,  M.  R.,  refused  to 
enforce  specific  performance  against  the  purchaser,  saying 
that  it  was  of  great  importance,  pai-ticularly  in  sales  by  the 
court,  that  conditions  of  sale  should  distinctly  explain  any 
difficulty  of  title.(^) 

§  1172.  In  a  latter  case  the  same  judge  relieved  a  pur- 
chaser from  a  misleading  condition  on  the  express  ground 
of  the  sale  having  taken  place  under  the  authority  of  the 
court ;  but  he  at  the  same  time  intimated  that  such  a  con- 
dition would  be  bad  in  any  sale.  (Z)  On  the  other  hand,  a 
condition  precluding  the  purchaser  from  objecting  to  the 
court's  jurisdiction  to  order  the  sale  of  a  reversion  in  which 
(as  the  condition  expressly  stated)  infants  were  interested 
was  held  by  the  Court  of  Appeal  in  Chancery  to  be  fair, 
reasonable,  and  binding,  (m) 

§  1173,  It  may  here  be  noticed  that  if  the  conditions  of 
sale  clearly  stipulate  that  the  property  will  be  conveyed 
subject  to  specified  liabilities,  the  vendor  may  enforce  the 
insertion  in  the  conveyance  of  apt  words  for  giving  effect 
to  the  stipulation,  even  though  it  be  not  shown  or  alleged 
that  the  property  is  in  fact  subject  to  any  of  the  specified 
liabilities. 

Thus  where,  on  a  sale  by  auction,  one  of  the  conditions 
provided  that  "the  property  is  sold  and  will  be  conveyed 
subject  to  all  free  rents,  quit  rents,  and  incidents  of  tenure, 
and  to  all  rights  of  way,   water,  and  other  easements,  if 

{})  Edwards  v.  WIckwar,  L.  R.  1  Eq.,  68,        (i)  Else  v.  Else,  L.  R.  13  Eq.,  196,  201. 

,f  N  -.TT-,,.  ^     ^        ^  ("'>  Munn  V.  Hancock,  L.  R.  6  Ch  ,  850. 

(A)  Williams  v.  Wood,  16  W.  R.,  1005. 


CONDITIONS    OF    SALE   AND    PARTICULARS.  569 

any,"  it  was  held  that  the  vendors  were  entitled  to  have 
the  words  "  subject  to  all  free  rents,  etc.,"  inserted  in  the 
conveyance,  notwithstanding  the  purchasers  objection  that 
they  were  wholly  inapplicable  to  the  property. (?^) 

(n)  Vale  v.  Squier,  4  Ch.  D.,  226,  affirmed    5Ch.  D.,625.  Of.  Sidney  v.  Clarkson,  35  Beav.,. 

118. 


570        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 


.      CHAPTER  II. 

OF   COMPENSATION. 

§  1 1 74.  Where  a  vendor  is  able  to  perform  the  contract 
in  its  substance,  but  unable  to  perform  it  liberally  in  all  its 
parts,  he  may  yet  sue  the  purchaser  for  its  sjDecific  perform- 
ance. On  the  other  hand,  where  a  vendor  has  not  substan- 
tially all  that  he  has  contracted  to  sell,  he  cannot  sue  for 
S])ecific  performance,  but  the  purchaser  may  generally  insist 
on  taking  what  the  vendor  has. 

§  1175.  From  these  princii:>les  arises  a  right  in  the  pur- 
chaser to  compensation  in  respect  of  the  difference  between 
the  thing  which  the  vendor  insists  that  he  shall  take,  or  he 
himself  insists  on  taking,  and  the  expressed  subject-matter 
of  the  contract.  It  will  be  shown  that  the  subjects  of  com- 
pensation in  the  two  cases  are  very  different,  and  that  maay 
defects  for  which  the  purchaser  may  obtain  compensation 
will  not  be  made  the  subjects  of  compensation  at  the  in- 
stance of  the  vendor,  {a)  The  rights  of  the  parties  to  com- 
pensation may  be  and  frequently  are  qualified  by  the  con- 
tract, which  in  many  cases  contains  a  condition  on  the 
point. 

§  1170.  It  was  formerly  held  that,  where  the  vendor 
sought  to  enforce  the  performance  of  a  contract  with  com- 
pensation, his  biU  was  demurrable,  unless  it  showed  that 
the  defect  was  a  fit  subject  for  compensation, (&)  and  in  a 
case  before  Stuart,  V.  C,  where  the  whole  of  the  vendor's 
bill  was  framed  on  the  view  that  a  good  title  had  been  shown 
by  the  time  iDrescribed,  and  that  was  the  sole  issue  raised 
by  it,  the  court  held  that,  the  plaintiff  having  failed  in  that 
contention,  sj^ecific  performance  would  not  be  enforced  with 
compensation. (c)  It  is  conceived  that,  under  the  present 
practice,  if  either  party  is  aware  of  any  case  for  compensa- 
tion, and  means  to  insist  on  it,  he  ought  distinctly  to  raise 
the  question  of  his  pleading  ;  (d)  but  it  seems  that  compen- 

(a)  Compare  Nelthorpe  v.  Ilolgate,  1  Call.,  (6)  Boyer  v  Bright,  13  Pri,  698. 

203  with  Collier  v.  .Jenkins,  You..  295.    See  (o  Ashton  v   Wood,  3  Sm   &  G.,  436. 

also  Wilson   v.  Williams,  3  Jur.  N.  S.,  810  (d)  Oraer  XIX.  rr.,  4,8,  18. 
(Wooil,  V.  C.) 


COMPENSATION.  571 

sation  may  be  granted  for  a  defect  appearing  on  the  investi- 
gation of  title,  though  the  pleadings  and  judgment  make  no 
reference  to  compensation,  (e) 

§  1177.  It  will  be  convenient  to  consider  separately  (1) 
the  cases  where  the  vendor  is  the  party  insisting  on  the  per- 
formance of  the  contract,  subdividing  these  into  (a)  cases 
where  either  the  contract  contains  no  condition  for  compen- 
sation, or  at  any  rate  no  such  condition  enters  into  the 
■question,  and  (b)  cases  where  there  is  such  a  condition  ;  and 
then  (2)  to  deal  in  a  similar  way  with  the  cases  in  wliich  the 
purchaser  is  the  party  insisting  on  the  contract. 

1 .  (a)  Vendor  insistinr/  on  the  contract^  there  heinff  no 
condition,  for   coiwpensation.' 

§  1178.  The  description  by  which  a  thing  is  contracted 
to  be  sold  is  a  matter  for  which  a  vendor  is  jyriind  facie  re- 
4sponsible.  Accordingly,  when  he  seeks  to  enforce  a  con- 
tract it  is  incumbent  u\)Oi\  him  to  show  that  he  is  able  to 
perform  his  part  of  it.  Inasmuch,  however,  as  equity  looks 
to  the  subs' ance  rather  than  to  the  mere  letter  of  a  contract, 
if  the  vendor  shows  that  he  can  substantially  do  what  he 
contracted  to  do,  he  is  entitled  to  enforce  specilic  perform- 

(e)  Wilson  v.  Williams,  3  Jur.  N.  S.,  810  (Wood,  V.  C.) 

'  Compensation  for  deficiency  in  the  purchase  of  lands,  is  essentially  a  matter 
of  equity  jurisdiction.  Castleton  v.  Veitch,  3  Rand.,  r)98.  But  it  is  clear  that 
conditions  expressly  inserted  in  the  articles  of  sale,  to  the  effect  that  variations 
or  misdescriptions  sliall  not  vitiate  the  sale,  will  render  the  agreement  cogniza- 
ble at  law.  Adams'  Eq.,  pp.  89,  90.  From  its  more  extended  jurisdiction, 
equity  has  no  difiiculty  ni  granting  aid,  to  a  purchaser  wlio  has  entered  into  a 
contract  without  knowledge  that  the  other  party  cannot  fulfil  his  part  of  the 
contract  in  into :  and  upon  a  proper  case  being  made  by  the  bill,  of  enforcing 
so  mucli  of  the  contract  as  lies  within  the  power  of  the  vendor,  and  awarding 
■compensation  for  the  deficiency.  The  cases  upon  this  point  are  numerous. 
Thomas  v.  Dering,  1  K.,  729;  Wheatley  v.  Slade,  4  Sim.,  126;  Graham  v.  Oli- 
ver, o  Bea.,  124;  Nelthorpe  v.  Ilolgate,  1  Coll.,  203;  Couse  v.  lioyles,  3  Green's 
■Ch.,  212;  Nelson  v.  Carrington,  4  Munf  ,  %S'l;  Crenshaw  v.  Smith,  5  id.,  415; 
Blessing  v.  Beatty,  1  Rob  (Va.),  287;  Neal  v.  Logan,  1  Gnitt..  14;  Barton  v. 
Bird,  I  Overton,  00;  Mo.ss  v.  Elmendorf,  11  Paige,  277;  Hepburn  v.  Auld,  5 
Cranch,  202;  Jacobs  v.  Lake,  2  Ired.'s  Ch.,  280;  Henry  v.  Leles,  id.,  4ur; 
Weatherford  v.  James,  2  Ala.,  170;  Ba.ss  v.  Gilliland,  5  id.,  701;  Rankin  v. 
Maxwell,  2  A.  K.  Marsh.,  488;  see  Jones  v  Shackleford,  2  Bibb.,  410.  Nor 
vpill  equity  refuse  to  grant  a  specific  performance  in  favor  of  the  vendor,  not- 
withstanding its  greater  reluctance  to  interfere  in  favor  of  vendors  than  pur- 
chasers. AlcWhorter  v.  McMahan,  1  Clark,  400.  And  there  are  cases  in  which 
a  vendor  of  land  may  come  into  equity  to  compel  a  specific  performance  of  the 
contract  of  sale,  although  he  may  have  a  remedy  at  law  by  an  action  for  the 
purchase  money.  Pliyfe  v.  Wardell,  5  Paige,  208;  see  Brown  v.  Half,  id.,  235. 
All  that  IS  required,  to  obtain  a  specific  performance  on  the  part  of  a  vendor, 
is  that  he  shall  perform  his  agreement  in  substance.  A  mere  trifluig  variation 
will  not  defeat  a  decree.     Willard's  Eq.  Jur.,  290;  Winne  v.  Reynolds,  0  Paige, 


572      in\  ON  SPECIFIC  pekfokmance  of  coxtracts. 

ance,  although  he  may  be  unable  to  do  it  modo  et  formd 
according  to  the  letter  of  the  contract ;  the  difference  be- 
tween what  he  contracted  to  do  and  what  he  can  actually 
do  becoming  the  subject  of  coni[)ensation. 

§1179..  "Lord  Thurlow,"  said  Lord  Eldon,  in  a  pas- 
sage already  cited,  '"used  to  refer  this  doctrine  of  specific 
performance  to  this  ;  that  it  is  scarcely  possible,  that  there 
may  not  be  some  small  mistake  or  inaccuracy  ;  as  that  a 
leasehold  interest,  represented  to  be  foi-  twenty-one  years, 
may  be  for  twenty  years  and  nine  months :  some  of  those 
little  circumstances,  that  would  defeat  an  action  at  law  ; 
and  yet  lie  so  clearly  in  compensation,  that  they  ought  not 
to  prevent  the  execution  of  the  contract. "(/) 

g  1180.  But  "if  (to  quote  Lord  Erskine),  a  court  of 
equity  can  compel  a  party  to  perform  a  contract,  that  is 
substantially  different  from  that,  which  he  entered  into,  and 
proceeded  upon  the  principle  of  compensation,  as  it  has 
compelled  him  to  execute  a  contract  substantially  different, 
and  substantially  less  than  that,  for  which  he  stipulated, 
without  some  very  distinct  limitations  such  a  jurisdiction, 
having  all  the  precision  of  law,  the  rights  of  mankind  under 
contracts  must  be  extremely  uncertain." (z/) 

Jj  1181.  It  falls  then  to  be  considered  (1)  what  defects  or 
circumstances  will  be  considered  by  the  court  so  material 
or  essential  as  to  debar  a  vendor  from  enforcing  the  contract 
at  all,  and  (2)  what,  on  the  other  hand,  will  be  held  so  im- 
material or  non-essential  as  to  allow  of  the  contract  being 
enforced  at  his  instance. 

§  1182.   (1)  The  contract  will  not  be  enforced  against  the 

(/)  In   Mortlock  v.  Buller,    in  Ves  .  305;    Elflon  in  Calcraft  v.  Hoebuck,  1   Ves    Jun. 
supra,  Part  I.cliap.  ii.  §  29.    JSee  too  perLonl    223,  221 

i,g)  In  Halsey  v.  Grant,  13  Ves.,  76. 


407.  Kingv.  Bardeau,  6  Jobn.'s  Ch.,  ;^8,  is  a  case  in  point.  Two  lots  were 
sold  at  auction  at  the  same  tinn;  and  to  the  same  person,  and  the  buildings  upon 
the  one  projected  upon  the  other,  and  it  was  hekl  that  the  vendor  might  enforce 
the  purchase  in  equity,  because  the  vendee  obtained  substantially  what  he  bar- 
gained for.  and  the  deticiency  was  capable  of  compensation.  Henry  v.  Grady, 
5  B.  Monr  ,  450,  is  very  much  of  the  same  nature.  'I  here  was  a  contract  for 
the  conveyance  of  land,  which,  although  not  crried  into  execution  at  the  time 
appointed,  was  not  considered  by  either  vendor  or  vendee  as  abandoned.  The 
vendor  refused  to  deliver  full  pos.session  at  the  time  fixed  for  surrender  to  the 
vendee,  and  the  vendee,  in  consequence,  refused  to  pay  the  purchase  money. 
It  was  held  that  the  vendor  might  enforce  a  specific  performance,  because  the 
injury  to  the  vendee  in  not  getting  possession  was  slight,  and  might  be  com- 
pensated out  of  the  purchase  money  still  to  be  paid. 


COMPENSATION. 


573 


purchaser  with  compensation  where  a  material  part  of  the 
subject-matter  is  wanting.  Formerly  the  court  went  far 
beyond  what  it  now  does  in  enforcing  contracts  substanti- 
ally different  from  those  entered  into ;  as  where  a  wharf- 
inger who  contracted  for  a  house  and  wharf  was  compelled 
to  take  the  house  without  the  wharf :  but  of  this  mode  of 
proceeding  Lord  Eldon  frequently  expressed  his  disap- 
proval, and  it  is  now  abandoned  by  the  court. (A)  "The 
court,"  said  Lord  Eldon  on  one  occasion,  "is  from  time  to 
time  approaching  nearer  to  the  doctrine  that  a  purchaser 
shall  have  that  which  he  contracted  for,  or  not  be  compelled 
to  take  that  which  he  did  not  mean  to  have."(/) 

§  1 1  83.  Accordingly  where  a  wharf  and  jetty  w^ere  con- 
tracted to  be  sold,  and  it  turned  out  that  the  jetty  was 
liable  to  be  removed  by  the  corporation  of  London,  specific 
performance  was  refused. (y)'  In  the  case  of  the  sale  of  a 
residence  and  four  acres  of  land,  a  slip  of  ground  of  about 
a  quarter  of  an  acre  between  the  house  and  the  high  road, 
to  which  no  title  was  made,  was  held  not  to  be  a  subject  for 
compensation. (A-)  And  in  case  Lord  Eldon  thought  that  a 
defect  in  title  in  respect  to  eleven  out  of  seventy  acres, 
which  do  not  ajopear  to  have  been  peculiar  in  their  position 
or  character  "would  probably  be  material  to  the  suit.'X^) 

§  1184.  In  some  cases  a  part  of  the  estate  contracted  for 
may  be  material  because,  if  any  one  else  were  to  possess  it, 
it  would  probably  be  turned  to  some  purpose  prejudicial  to 
the  enjoyment  of  the  estate  ;  as  where  land  near  a  mansion 
was  such  that  it  would  be  most  profitably  used  for  building 
ground  or  for  a  brick-kiln.  But  the  nuisance  thus  appre- 
hended must  be  probable,  and  not  merely  distant,  fanciful, 
and  conjectural. (m)' 

(h)  Drewe  v.  Hanson,  6  Ves.,  675;  Halsey  (i)  3  Mer.,  146.    See.  too,  the  judgments  of 

V.  Grant.  13  Ves  ,  73;  Stapylton  v.  Scott,  13  the  L.  J.  J.  in  Re  Arnold.  U  Ch.  D.,  2,0. 

Ves.,  425;  KnatchbuU  v.  Grueber,  3  Mer.,  124.  (  j)  Peers  v.  Lambert,  i  Beav.,  o46. 

8ee  also  Howland  v.  Norris,  1  Cox,  59.    The  (k)  Perkins  v.  Ede,  IG  beav.,  193. 

decision  in  Shirley  v.  Davis,  to  which  Lord  (I)  Osbaldsiton  v.   Askew,  2  J.  &  AY  .,  539. 

Eldon  frequently  alludes,  aupears  to   have  Cf.  Portman  v.  Mill,  2  Kuss.,  o,0,  o,4 

been  in  fact  the  opposite  of  that  which  his  (wi)  See  per  Plunier,  V.C.in  Ku  tchbull  v. 

Lordship  stated.    Shirley  v.  Stratton,  1  Bro.  Grueber,  1  Mad.,  167  (the  case  oa  appeal  is 

C  C,  440,  n.  (2).  reported  3  Mer.  124). 


1  Deficiency  essential  to  the  enpyment  of  tlie  residue.]  Where  the  deficiency  is 
so  great  that  the  remainder  could  not  be  enjoyed  profitably,  or  where  the  defi- 
ciency is  essential  to  the  enjoyment  of  the  residue,  equity  will  not  enforce  sp_e- 
ciflc  performance  against  a  purchaser.  Howard  v.  Kimball,  05  X.  C,  175; 
Philips  V.  Stanch,  2U  Mich. ,  36!). 

-  Doctrine  of  comiyensation.']     Sir  Thomas  Plumer,  V.  C,  said  in  Kuatchbull 


574        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

§  1185.  Again  where  the  tenure  of  an  estate  contracted 
to  be  sold  is  in  fact  altogt^ther,  or  to  a  substantial  extent, 
different  from  that  which  the  vendor  has  represented  him- 
self to  be  selling,  he  will  not  be  able  to  enforce  performance, 
unless  indeed  the  purchaser  has  wiuved  the  objection. 

§  1180.  Thus  where,  on  a  sale  by  auction,  the  particu- 
lars described  the  property  to  be  sold  as  a  "freehold  estate 
with  a  leasehold  adjoining,"  and  it  turned  out  that,  of  the 
seventy  acres  of  which  the  estate  consisted,  sixty-two  were 
leasehold  and  only  eight  freehold,  Lord  Alvanley,  M.  U., 
said  that,  if  the  purchaser  had  objected  on  that  ground,  he 
should  have  thought  the  purchase  ought  not  to  be  carried 
into  execution.  As,  however,  the  purchaser  had  not  taken 
the  objection,  his  lordship  granted  an  injunction  restraining 
an  action  for  the  dej^osit  on  the  terms  of  the  vendor  bringing 
the  money  into  court,  (ti.) 

§  1187.  Again,  where  an  estate  is  sold  as  tithe  free, 
subject  to  a  modus,  and  it  is  in  fact  subject  to  tithe, 
the  court  will  not,  as  a  general  rule,(o)  compel  the  pur- 
chaser to  take  it  with  compensation. (^j") 

§  1188.  Nor,  it  seems,  would  the  court  compel  a  person 
who  had  contracted  for  the  purchase  of  an  estate  free  from 
incundjrances  to  take,  instead  of  that,  an  estate  subject  to 

(w)  Fordyce  v.  Forrt,  4  Uro.  C.  0.,494  Cf.       (p)  Ker  v.  Clobury.  St.  Leon,  Vend.,  267; 

Cox  V.   Coventon,  31   Beav.,  378;    ind  eee    Binks  v.  Lord  Ittikeby.  2  Sw.,  222.     Lord 

Hughes  V.  Jones,  3  De  G  F.  &J.,3(i7.  Stanhope'scase  cited  6  Ves..  678,isexplalned 

(o)  See,  however,  iuira,  §  1199.  by  Lord  St.  Leonards,  Vend.,  266 

V.  Giueber,  1  Mad.,  153:  "There  is  great  difficulty  of  applying  the  doctrine  of 
compensation  to  a  reluctant  purchaser.  1  here  is  no  standard  by  which  to  ascer- 
tain what  is  essential  to  a  ]nirchaser.  The  motives  for  purchasing  real  property 
are  very  ditferent  in  different  persons  Facts,  opinions  and  ages  create  differ- 
ent views  Some  particularity,  some  whim,  may  have  induced  him  to  purchase. 
What  is  desirable  to  one  is  not  so  to  another.  One  wants  a  wood  for  game, 
another  dislikes  tithes.  It  therefore  seems  a  little  arbitrary  to  insist  on  a  party 
takiug  compensation.  Why  am  I  bound  to  take  what  I  did  not  mean  to  buy  ? 
You  say  yiai  will  give  me  compensation,  but  who  is  to  judge  of  the  compensa- 
tion ?  Can  you  be  sure  it  is  a  compensation  ?  It  is  a  dillicult  thing  for  a  mas- 
ter to  ascertain  what  is  essential  to  the  enjoyment  of  the  estate,  and  what  is  a 
proper  compensation.  It  is  as  difficult  for  the  court  to  decide,  if,  having  all 
the  data  before  it,  it  decides,  as  it  is  then  proper  to  do,  without  sending  it  to 
the  master.  Are  you  to  look  at  the  land  in  its  present  state,  or  to  consider  in 
Avhat  state  it  may  be  in  future  ?  It  is  said  a  purchaser  should  communicate 
his  motives  lor  purchasing.  If  so.  the  vendor  might  enhance  the  price.  It  is 
also  said  that  the  defendant's  objection  that  these  twelve  acres  are  essential  was 
an  after  thought.  Suppose  it  was.  Is  a  court  of  equity  to  say  no  advantage 
can  be  taken  of  the  objection  ?  Though  a  purchaser  may  not,  at  first,  be  aware 
of  tlie  essentiality  of  the  land  to  which  no  title  can  be  made,  yet,  if  he  after- 
wards finds  it  is  es.sential,  is  a  court  of  equity  to  say  he  shall  not  avail  himself 
of  the  obiection  ? "  See,  also,  Foley  v.  Crow,  37  Md  ,  51 ;  Shaw  v.  Vincent, 
64N.  C.,'690. 


COMPENSATION.  575 

an  incumbrance  amounting  to  one  half  of  the  purchase- 
money  \{q)  though  if  there  is  only  a  small  incumbrance  upon 
a  considerable  estate,  the  decision  may,  as  will  be  shown,  be 
otherwise,  (r) 

§  1189.  In  some  cases  the  compensation  to  be  made  for 
a  defect  may  take  the  form  of  an  indemnity  ;  which  is  a 
species  of  compensation— inasmuch  as  something  else  is 
given  in  place  of  the  very  thing  contracted  for— applicable 
to  cases  where  the  defect  or  loss  is  not  certain  but  con- 
tingent. 

§  1190.  The  court  will  not,  however,  at  a  vendor's  in- 
stance, compel  the  purchaser  to  take  an  indemnity,  unless 
such  indemnity  was  part  of  the  contract  between  the  par- 
ties. (-?)  Thus,  where  the  sub-lessee  of  a  house  had  con- 
trajcted  to  grant  a  twenty-one  years'  lease  of  it  to  the 
defendant,  but,  owing  to  the  house  in  question  being,  with 
five  others,  subject  to  the  covenants  and  proviso  for' re-entry 
contained  in  the  head  lease,  could  not  give  the  defendant  a 
secure  lease  for  the  term  of  his  contract,  specific  perform- 
ance was  refused,  though  the  plaintiff  offered  to  indemnify 
the  defendant  in  case  of  his  eviction.  (zJ)  Similarly  it  has 
been  held  that  a  purchaser  could  not  be  forced  to  take  an 
indemnity  in  respect  to  a  misdescription,  (-z^)  or  of  a  possible 
liability  under  an  ambiguous  covenant.  («) 

§  1191.  In  a  case  decided  by  Lord  Hatherley  (then 
Wood,  V.  C.,)  in  the  year  1858,  the  contract  was  that  the 
defendant  should  procure  a  lease  then  vested  in  his  father 
to  be  surrendered  to  the  plaintiff,  and  would  thereupon 
accept  a  new  lease  from  the  plaintiff  and  pay  a  premium  of 
£3U0  for  it.  The  father  refused  to  surrender  his  lease, 
whereupon  the  plaintiff  filed  her  bill  for  specific  perform- 
ance, praying  that,  if  the  defendant  could  not  obtain  the 
surrender,  he  might  be  decreed  to  accept  a  lease  com- 
mencing from  the  expiration  of  his  father's  lease,  and  in 
other  respects  in  the  terms  of  the  contract,  and  also  to  make 
good  her  loss  resulting  from  the  non-performance  of  the  con- 
tract.    It  was  held  on  demurrer  that  the  court  could  not 

(a)  Per  Lord  Eldon  in  Wood  v.  Bernal,  19  §§  1245,  1246.    See  too  Wood  v.  Bernal,  19 

Ves    "21  Yes  ,221. 

(r)' See' infra,  §  1196  et  seq  (<)  Fildes  v.  Hooker,  3  Mad.,  193. 

(s)  See  per  Lord  Eldon   in  Balmanno  v.  («)  Ridgway  v.  (iray,  1  Mac.  &  Or.,  109. 

Lumley  1  V.  &  B.,  J25,  a:nl  (-\...,l-3  cited  Infra,  {v)  Nouaiiie  v.  Fli^jlit,  7  Bcav.,  521. 


576      FRY  ON  spkcifk;  pekformaxce  of  contkacts. 

interfere  to  decree  specific  performance,  but  would  leave  the 
I)laintiff  to  her  remedy  at  common  law  in  damages. (wj)   . 

§  1 192.  The  principle  of  compensation  will  not  be  applied 
at  the  instance  of  a  vendor  who  has  been  guilty  of  misrex)re- 
sentation.     This  point  will  be  illustrated  hereafter. (re) 

§  1193.  Even  where  the  circumstances  are  such  that  the 
vendor  might  originally  have  enforced  the  contract  with 
compensation,  he  may  lose  his  right  to  do  so  by  subsequent 
conduct  inconsistent  with  the  contract — as  for  instance 
where,  one  of  the  terms  of  the  contract  being  that  im- 
mediate possession  should  be  given,  and  the  purchaser 
liaving  taken  possession  accordingly,  the  vendor,  on  a 
question  as  to  compensation  arising,  turned  him  out  of 
p)Ossession.(?/) 

§  1194.  (2)  On  the  other  hand,  in  each  of  the  following 
cases  the  defect  was  considered  a  proper  subject  for  com- 
pensation, but  not  so  essential  as  to  debar  the  vendor 
altogether  from  enforcing  the  contract : — where  an  estate  of 
about  186  acres  was  described  as  freehold,  and  in  fact  about 
two  acres,  part  of  a  i)ark,  were  held  only  from  year  to 
year  ;{z)  vfhere  there  was  an  objection  to  the  title  of  six 
acres  out  of  a  large  estate,  and  those  acres  do  not  appear  to 
have  been  material  to  the  enjoyment  of  the  rest  ;(a)  where 
fourteen  acres  were  sold  as  meadow,  and  only  twelve 
answered  that  description  ;{b)  and  where,  on  a  purchase  by 
a  tenant  in  possession,  property  described  as  forty-six  feet 
in  depth  proved  to  be  only  thirty-three  feet.(c) 

§  1195.  In  one  case  where,  on  a  sale  of  colliery  works, 
the  vendors  had  stated  the  annual  profits  of  the  concern  at 
a  sum  largely  in  excess  of  the  actual  amount,  they  were 
nevertheless  allowed  to  enforce  the  contract,  but  on  the 
terms  of  making  compensation  to  the  purchasers  by  sub- 
mitting to  an  abatement  from  the  purchase-money,  bearing 
the  same  proportion  to  the  excess  as  the  total  purchase- 
money  bore  to  the  caj)italised  value  of  the  amount  of  profits 
stated  by  the  vendors,  {d) 

§  1196.  On  the  general  principle  already  stated,  (e)  the 
mere  fact  of*  the  existence  of  some  small  or  (to  the  pur- 

(w)  Beeston  v.  Stately,  6  W.  R.,  20G;  27  L.  {z)  Calcraft  v.  Roebuck.  1  Ves.  Jun.,  221. 

J.  Ch.,  156;  sec  now  infra,  §§  1265, 1270.  («)  McQueen  v.  Farquhar,  11  Ves.,  46*. 

(a;)  Infra,  §  1217  et  seq.  (b)  Scott  v.  Hanson,  1  K.  &  My  ,  128. 

(y)  Knatchbull  v.  Grueber,  3  Mer.,  124, 144,  (c)  King  v.  Wilson,  6  Beav.,  124. 

14^7.  (d)  Powell  V.  Elliot,  L.  R.  lU  Ch.,  424. 


COMPENSATIOlSr.  577 

€haser)  immaterial  incumbrances  on  the  property  is  not 
enough  to  deprive  a  vendor  of  his  right  to  insist  on  the 
specific  performance  of  the  contract. 

§  1197.  Thus,  where  titlies  contracted  to  be  sold  were 
subject  to  sundry  small  charges, (/)  and  where  the  estate 
sold  was  subject  to  quit-rents  (which  may  be  regarded  as 
incidents  of  tenure,  [p'])  the  court  enforced  the  contracts,  in 
one  case  with  an  inquiry  whether  there  ought  to  be  any  and 
what  indemnity  in  respect  of  the  charge, (7^.)  and  in  the 
others  with  compensation  to  the  purchaser  by  way  of  abate- 
ment from  the  purchase-money. 

§  1198.  And  in  a  case  where  an  estate  sold  as  fen  land, 
and  so  described  in  the  particular,  was  subject,  under  a 
local  but  public  act,  to  certain  embanking  and  drainage 
taxes  which  were  not  mentioned  in  the  particulars,  the 
€ourt,  on  the  ground  apparently  of  the  act  imposing  the 
charges  being  a  jJi^blic  act,  decreed  against  the  purchaser 
specific  performance  of  the  contract  without  compensa- 
tion, (z) 

§  1 199.  Further,  although,  as  we  have  seen,  (,/)  a  man  who 
contracts  to  purchase  an  estate  which  is  described  as  tithe- 
free  will  not  generally  be  compelled  to  complete  his  pur- 
chases, if  it  turn  out  that  the  land  is  subject  to  tithe, — it 
being  considered  that,  as  a  general  rule,  the  right  to  the 
tithe  is  so  material  to  the  enjoyment  of  the  land  as  to  have 
formed  the  inducement  to  the  purchase, — still,  where  the 
circumstances  show  that  the  right  to  the  tithe  is  not  thus 
material,  the  general  rule  ceases  to  apply.  For  instance, 
where  an  estate  of  about  140  acres  was  described  as  subject 
to  tithe  except  thirty-two  acres,  and  the  exem]3tion  from 
tithe  of  those  thirty-two  acres  was  not  proved,  (A*)  and  again 
where  the  circumstances  showed  that  the  question  whether 
the  land  was  to  be  tithe  free  or  not  was  an  immaterial  one 
in  the  view  of  the  x^urchaser  ;(Z)  the  court  compelled  the 
purchaser  to  complete  the  contract  witli  comj)ensation. 

§  1300,  On  the  principle  that  a  warranty  or  a  represen- 

(e)  Supra,  §  1178,  (i)  Barraud  v.  Archer,  2  Sim.,  433;  affirmed 

If)  Halsey  V.  Grant,  13  Ves,  73;  Horniblow  on  appeal  (not  reported:  see  2  R.  &  My.,  751), 

V.  Shirley,  13  Ves.,  81.    Of.  Drewe  v.  Hanson,  (J)  supra,  §  1187. 

6  Ves,  675.  (A)  Binks  V.  Lord  Rolceby,  2  Sw.,  222,    In 

ig)  Esdaile  v.  Stephenson,  1  S.  &  S.,  122,  this  case  there  appears  to  have  been  a  con- 

124.  dition  that  errors  of  description  should  not 

{h)  Halsey  v.  Grant,  ubi  supra.  vitiate  the  sale.    See  2  Sw.,  225. 

(I)  Smith  V.  Tolcher,  4  Kuss.,  302. 

37 


578        FRY  ON  SPECIFIC  PERFUKMANCE  OF  CONTRACTS. 

tation  is  not  bindino;,  where  in  respect  of  some  defect  that 
is  perfectly  patent,  (^^i)  the  court  will  not  give  a  purchaser 
comiDensation  for  defects  of  this  nature  :  so  that  a  contract 
was  enforced,  at  a  vendor's  instance,  without  any  compen- 
sation in  respect  to  the  misdescription  of  a  farm  described 
as  lying  within  a  ring  fence,  which  did  not  so  lie,  as  the 
purchaser  had  himself  seen  and  knew ;  while  in  the  same 
case  compensation  was  given  for  latent  defects.  (?z) 

§  1301.  But  in  order  that  this  principle  shall  apply,  the 
defect  must  be  perfectly  visible  to  everybody :  therefore^ 
where  a  representation  was  made  by  a  vendor  as  to  the  dry- 
rot  in  a  house,  w^hich  was  not  a  matter  so  perfectly  visible, 
the  court  gave  compensation  :(o)  and  where  a  tenant  in  pos- 
session purchased  the  property,  which  was  represented  as 
forty-six  feet  in  depth,  but  was  in  fact  only  thirt}' -three 
feet,  he  was  held  entitled  to  compensation,  inasmuch  as 
occupiers  are  not  in  the  habit  of  measuring  their  premi- 
ses, {p) 

§  1S03.  Moreover,  if  the  purchaser,  after  he  knows  of  a 
defect,  acts  in  a  manner  implying  a  waiver  of  it,  the  vendor 
becomes  entitled  to  insist  on  the  completion  of  the  purchase 
without  compensation.  Thus,  where  the  abstract,  delivered 
in  January,  showed  part  of  the  estate  to  be  subject  to  a 
right  of  sporting,  and  in  the  following  A^Dril  the  purchaser 
at  his  own  request  was  let  into  possession,  and  afterward 
several  letters  passed  between  the  parties,  and  most  of  the 
purchase-money  was  paid  without  any  objection  on  the  score 
of  the  right  before,  in  October  of  the  same  year,  the  pur- 
chaser claimed  compensation  ;  it  was  held  that  he  had 
waived  the  objection,  and  si^ecific  performance  without  com- 
pensation was  decreed  against  him. ((7) 

§  1303.  In  an  Irish  case  specific  j)erformance  was  en- 
forced, at  the  vendor's  instance,  without  compensation  for 
a  deficiency  of  nearly  one-half  in  acreage  of  propert}^  de- 
scribed in  the  contract  as  "about  200  acres  of  mountain 
land,"  the  land  being  a  waste  of  heath  of  trifling  value. (r) 

(ot)  Supra,  §§  658,  659,  849.    Of.  Horsfall  v.        (;;)  King  v.  Wilson,  6  Beav.,  124. 
Thomas,  31  L.  J.  Ex.,  322;  10  W.  R.,  650.  (q)  Burnell  v.  Brown,  1  J.  &  W.,  168.    Dis- 

(n)  Dyer  v.  Hargrave,  10  Ves.,  505.  tinguish  Hugbes  v.  Jones,  3  De  G.  F.  &  J.,. 

(o)  Grant  v.  Munt,  Coop.,  173.  307. 

(r)  Corless  v.  Sparling,  I.  R.  9  Eq.,  595. 


coMPENSATioisr.  579 

1.  (b)  Vendor  insisting  upon  the  contract,  there  being 
a  condition  for  comyensation. 

§  1304.  In  the  cases  now  to  be  considered,  while  the 
general  principles  already  stated  are  applicable,  and  the 
rights  of  the  vendor  are  usually  somewhat  extended  by  the 
language  of  the  particular  condition,  at  the  same  time,  con- 
ditions of  sale  being,  as  we  have  seen,(.^)  construed  strictly 
against  the  vendor,  it  is  incumbent  upon  him,  if  he  rely 
upon  the  condition  to  compel  the  purchaser  to  carry  the 
contract  into  execution,  taking  compensation  for  some  de- 
fect, to  show  that  the  defect  is  of  such  a  nature  as  pro^^erly 
to  fall  within  the  condition. (^) 

§  ISOS.  Quite  apart  from  any  consideration  of  fraud, 
where  there  is  in  a  contract  a  misdescription  "  in  a  material 
and  substantial  point,  so  far  affecting  the  subject-matter  of 
the  contract  as  that  it  may  be  reasonably  supposed,  that, 
but  for  sncli  misdescrij)tion,  the  purchaser  might  never  have 
entered  into  the  contract  at  all,  in  such  case  the  contract  is 
avoided  altogether,  and  the  purchaser  is  not  bound  to  resort 
to  the  clause  of  compensation." (^0 

§  1206.  Thus,  where  the  particulars  of  a  leasehold  house 
in  Covent  Garden  stated  that,  by  the  lease,  "no  offensive 
trade  was  to  be  carried  on,  and  that  the  premises  could  not 
be  let  to  a  coffee-housekeeper  or  working  hatter,"  and  there 
was  a  condition  for  compensation  in  case  of  error  or  mis- 
statement, and  the  original  lease,  in  fact,  prohibited  a  vast 
variety  of  other  businesses  than  those  described,  including 
the  sale  of  any  provisions,  the  i^urchaser  was  held  to  be 
entitled  to  rescind  the  contract,  (-y) 

§  1207.  Again,  where  there  was  a  condition  for  com- 
pensation in  the  case  of  error  in  the  description  of  the 
premises,  or  of  any  other  error  whatsoever  in  the  particulars, 
and  the  jiroperty  which  was  described  as  coj)yliold  turned 
out  to  be  partly  freehold.  Lord  Romilly,  M.  R.,  refused  to 
compel  specific  performance  by  the  purchaser  :  he  had  con- 
tracted to  purchase  one  thing,  and  he  might  refuse  to 
accejDt  another. (w) 

(«)  Supr »,  §  1154  et  seq.  Phillips,  Prec.  in  Cli.,  575,  a  bill  by  a  vendor 

(<)  See  per  Lord  Westbury  in  Cordingly  v.  of  an  estate,  which  in  the  articles  was  treated 

Cheest.boi.   ..,-.i,  4De  G.  F  &  J.,  384.  as  freehold,  was  refused  hecaiise  about  one- 

(M)  Per  Ml  tlal,  C.  J.,  in  Flight  v.  Booth,  1  sixth  in  value  was  copyhold,  but  nothing  is 

Bin.p;.  N .  C    ;. .  stato  ^  as  to  the  peculiar  nature  of  the  tenure. 

(r)  r!i;.htv   /'-octh,  1  Bing.  N.  C,  370.     Dis-  Of.  the  observations  of  Romilly,  M.  R  ,  in 

tii.Miisli  Groaveu.-i  v   Green,  7  W.  R.,  140.  Hui-.roii  v.  Cook,  L.  R.  13  Eq.,  4J0.    See  too 

^M7)  Ayles  V.  0;x,  i6  Beav.,  23.    In  Hick  v.  Evans  v.  Robins,  8  Jur.  N.  S.,  846. 


580        FRY  ON  SPECIFIC  PEKFOIIMANCE  OF  CONTRACTS. 

§  1208.  In  anotlier  case  a  yard,  which  was  essential  to 
the  enjoyment  of  tlie  property  sold,  was  held  from  year  to 
year,  instead  of  for  the  term  of  twenty-three  years  for  which 
the  rest  of  the  i)remisHS  were  held,  and  at  a  separate  rent : 
this  was  considered  to  be  a  defect  which  the  vendors  were 
not  entitled  to  bring  witliin  a  condition  for  comj)ensation 
for  mistake  in  the  description  of  the  property  or  anj  other 
error  whatsoever  in  the  particulars.  (:c) 

§  1209.  In  Madeley  v.  Booth(i?/)  leasehold  iDroperty  was 
sold  for  the  residue  of  a  term  of  ninety-nine  years,  which 
commenced  on  the  24th  of  June,  1838,  under  conditions 
which  prohibited  the  purchaser  from  calling  for  the  lessor's 
title,  and  stipulated  that  any  error  or  misstatement  of  the 
property,  term  of  years,  or  other  description,  should  not 
vitiate  the  sale,  but  that  a  compensation  should  be  given : 
the  term  sold  was  really  not  the  residue  described,  but  a 
derivative  term  less  by  three  days  than  the  original  one : 
Knight  Bruce,  V.  C,  held  that  the  underlease  was  not  sub 
stantially  the  same  thing,  the  resulting  rights  being  different, 
and  accordingly  dismissed  with  costs  a  bill  by  the  vendor 
praying  for  specific  performance  with  comi^ensation.  This 
decision,  however,  has  been  Judicially  disapproved  of,  and 
does  not  seem  to  be  consonant  with  principle.  (^) 

§  1210.  The  principle  under  consideration  of  course 
applies  where,  though  the  whole  land  is  conveyed,  it,  or  a 
part  of  it,  is  subject  to  rights  which  materially  affect  its 
enjoyment :  thus  a  right  of  way,  which  would  render  use- 
less for  building  a  close  advertised  as  building-ground,  has 
been  held  not  to  come  within  a  condition  for  compensa- 
tion ;{a)  so  grants  of  rights  to  the  owners  of  lower  lands,  to 
fetch  water  from  a  spring  on  the  upper  lands,  to  cut  and 
cleanse  drains  leading  the  water  to  the  lower  lands,  and 
other  similar  rights  having  reference  to  four  and  a  half 
acres  out  of  about  thirty  sold,  were  held  to  constitute  a 
material  defect  in  the  title  to  the  upper  lands,  and  con- 
sequently were  not  the  subject  of  compensation,  notwith- 
standing a  condition  that  a  mistake  in  the  description  or  an 

{X)  Dobell  V.  Hutchinson,  3  A.  &  E.,  355.  way,  13  Ch.  D.,  760,  and  infra,  §  1215.     See 

(y)  2DeG.  &  Sm.,  718.  too  Darlington  v.  Hamilton,  Kay,  557,  558; 

(z)  See  per  Jessel,  M.  R.,  in  Camberwell  ami  Hayford  v.  Criddle,  22  Beav.,  477 
and  South  London  Building  Society  v.  UoUo-       (a)  Dykes  v.  Blake,  4  Bing.  N.  C,  463. 


COMPENSATIOlSr,  581 

error  in   the   particulars   sliould  be   the   siibject   of   com- 
pensation, and  not  annul  the  contract.  (6) 

§  1211.  Generally,  where  there  is  a  proper  case  for  com- 
pensation, and  the  amount  can  be  reasonably  estimated,  the 
court  is  disposed  to  grant  it.(c) 

§  1219.  But  where  thi«  reasonable  estimate  is  not  attain- 
able, the  court  refuses  to  compel  the  purchaser  to  take  com- 
pensation :  thus,  where  a  house  and  grounds  were  sold  by 
the  court,  and,  pending  the  making  out  of  the  title,  some 
ornamental  timber  was  cut  down,  the  purchaser  was  dis- 
charged, because  the  act  affected  the  value  of  the  property 
to  the  purchaser,  as  a  residence,  in  a  way  which  the  court 
was  unable  to  measure. (rZ)  And  where  the  particulars 
represented  the  average  size  of  the  timber  in  the  wood, 
which  was  the  property  sold,  as  approaching  fifty  feet,  but 
in  no  way  specified  the  number  of  the  trees ;  and  the 
witnesses  for  the  plaintiff  (the  vendor)  treated  no  trees  con- 
taining less  than  ten  feet  as  timber  trees,  and  on  this  basis 
showed  an  average  of  thirty-four  feet  six  inches  ;  whilst  the 
defendant's  witnesses,  reckoning  all  trees  containing  not 
less  than  five  feet  as  timber  trees,  showed  an  average  of 
twenty-two  feet  only  ;  it  was  held  by  Lord  Hatherley  (then. 
Wood  V.  C.)  that  the  subject-matter  sold  fell  short  of  the 
description  ;  but,  in  the  absence  of  any  representation  as  to 
the  number  of  trees,  the  court  had  no  data  for  calculation, 
and  therefore  could  not  give  compensation,  but  dismissed 
the  bi]l.(e) 

§  1213.  The  same  principle  seems  to  have  governed 
another  case,  in  which  the  premises  were  described  as  in 
the  joint  oc(?upation  of  A.  and  B.  as  lessees,  whereas  they 
were  in  fact  in  their  joint  occupation,  but  not  as  lessees,  but 
A.  was  the  assignee  from  C,  the  original  lessee  :  it  was 
held  that  this  was  not  a  case  for  compensating  the  pur- 
chaser, but  that  he  could  not  be  forced  to  take  an  in- 
demnity. (/) 

§  1214.  On  the  other  hand,  where  the  conditions  pro- 
vided that  any  misstatement  of  the  quality,  tenure,  out- 

(b)  Shackleton  v.  Sutcliffe,  1  De  G  &  Sm.,  (e)  Lord  Brooke  v  Rounthwaite.  5  Ha.,  298. 
609.    Ct.  Nouaille  V.  Flight,  7  Beav.,  521.  Cf.  infta,  §  1261. 

(c)  .see  infra,  §  1242.  (/)  Kidgway  v.  Graj',  1   -Mac.  &  G.,  109. 

(d)  Magennis  v.  Fallon,  2  Moll.,  561,  584.  Distinguish  Farebrother  v.  Gibson,  1  De  G. 
Cf,  Cox.  V.  Coventon,  31  Beav.,  378.  &  J..  602. 


582        FRY  ON  SPECIFIC  PEKFOKMANCE  OF  CON  TPwACTS. 

goings,  or  other  particulars  of  the  property,  described  by 
an  innocent  mistake  as  "valuable  freehold  estate,"  should 
be  the  subject  of  compensation  ;  and  one  lot  was  in  fact  of 
copyhold  tenure,  but  it  appeared  that  under  a  composition 
with  the  lord  of  the  numor  the  difference  in  value  between 
copyholds  in  that  manor  and  freeholds  was  very  slight ;  it 
was  held  that  the  vendor  was  entitled  to  compel  the  pur- 
chaser to  take  the  lot  in  question  with  compensation. (^) 

§  1S15.  Further,  although,  where  a  man  sells  a  lease  for 
a  definite  term  of  years,  and  nothing  m<n'e  is  said  on  either 
side,  he  cannot  make  a  good  title  unless  he  show^s  that  it  is 
an  original  lease,  yet  where  the  particulars  and  conditions 
of  sale  in  effect  tell  the  purchaser  that  the  lease  which  is 
offered  for  sale  is  in  fact  an  underlease,  the  vendor  is 
entitled  to  enforce  completion  without  compensation,  and 
that  notwithstanding  a  condition  for  compensation  in 
the  event  of  any  error  or  mistake  appearing  in  the  descrip- 
tion, or  in  the  nature  or  quality  of  the  vendor's  interest 
therein,  or  in  the  particulars  of  the  sale.  Former  se  calling 
a  thing  a  lease  whicli  is  a  lease  is  not  a  misdescription. (A) 

§  1S16.  The  cases  where  the  defect  is,  from  its  magni- 
tude or  importance,  not  a  proper  subject  for  compensation, 
have  been  already  stated.  We  may  now  consider  some 
other  cases,  wdiere  the  doctrine  will  not  be  applied. 

§  1217.  The  principle  of  compensation,  whether  arising 
under  the  general  doctrine  of  the  court,  or  under  a  condi- 
tion for  compensation  in  case  of  any  error  or  misstatement, 
will  not  be  applied  where  there  has  been  misrepresentation,  (/) 
even,  it  seems,  though  the  difference  be  of  such  a  character 
that,  if  it  had  arisen  from  mere  error,  it  w^ould  have  been 
subject  to  compensation,  as,  for  instance,  in  respect  of  the 
difference  between  copyholds  nearly  equal  in  value  to  free- 
holds and  freeholds,  {j) 

%  1918.  Thus  where,  on  a  sale  by  auction,  one  of  the  lots 
was  described  as  to  be  sold  wi  th  a  reservoir  and  waterworks 

{a^  Price  V    Macaulay,  2  De  G.  M.  &  G.,  (i)  Per  Plunil)er  M.  R.  in  Clermont  v.  Tas- 

339"^  burgli,  IJ.  &  W,  119.  liO; 

{K\  PerJessel  M.    R.  in  Cumberwell  and  Duke  of  NorfoU  v.  Worthy,  1  Camp-,  337, 

South  Lon<lon  Building  Society  v.  Holloway,  340;  Powell  v   Doubh'.e,  St.  Leon.  Vend  ,23; 

13  th    D.,  754,  Tin      Cf  Darlington  v   lianiil-  .•>ti;\vart  v.  AUlston,  1  Mer.  26;  eupra,  §  1164; 

ton,  Kay,  558;  Havford  v.  ('riddle,  22  Beav  ,  and  .Mstinguish  Powell  v.   Ellioit,  L.  R.  10 

477;  Nouaille  v.  Flight,  7  Beav.,  521 ;  Hen-  Ch.,  424.                                 „  ,.     „    ,c    p.  ^ 

dernon  v.  Hudson,  15  \V.  R.,  &6t);  Flood  v.  (j)  Price  v.  Macaulay,  2  De  G.  M.  &  L... 

Pritchard,  40  I,.  T.,  873;  Turner  v.  Turner,  339,  344. 
W.N.  1881,70. 


COMPENSATION. 


583 


yielding  a  yearly  rental  of  about  £60,  and  it  turned  out 
that  this  rental  arose  from  supplying  with  water  from  the 
reservoir  some  houses  between  which  and  the  reservoir  lay 
lands  of  other  proprietors,  through  which  the  vendor  had 
no  right  to  carry  the  water  except  under  a  license  from  year 
to  year  for  which  he  paid  rent ;  it  was  held  that  the  de- 
scription contained  such  a  misrepresentation  as  to  debar  the 
vendor  from  enforcing  specific  performance.  (A') 

§  l!31».  Representation  as  to  the  tenancy  of  a  house,  the 
court  refused  to  hold  the  purchaser  to  his  contract  and 
make  him  take  compensation  for  the  delay  which  would 
have  been  needed  for  an  ejectment,  although  the  purchaser 
Ibought  for  investment,  and  not  for  residence.  (Z) 

§  129©.  Again,  where  the  particulars  of  sale  described  a 
farm,  which  formed  about  one-third  of  the  estate  sold,  as 
.  ''lately  in  the  occupation  of  A.  at  an  annual  rent  of  £290, 
155,"  and  the  facts  were  that  A.  had  occupied  the  farm  for 
a  year  and  a  quarter  only,  and  then  at  the  nominal  rent  of 
£3,  for  the  first  quarter,  and  that  since  his  tenancy  (which 
came  to  an  end  about  sixteen  months  before  the  sale)  the 
vendor  had  been  willing  to  let  the  farm  at  £225,  and  knew 
that  nothing  like  £290  a  year  could  be  obtained  for  it,  the 
court  held  that  such  misrepresentation  was  not  a  matter  for 
compensation,  but  entitled  the  purchaser  to  be  discharged 
altogether  from  his  purchase,  (m) 

§  1221.  But  it  seems  that  a  mere  flourishing  description 
in  particulars,  such  as  that  land  is  fertile  and  improvable, 
whereas  part  of  it  has  in  fact  been  abandoned  as  useless, 
cannot,  except  as  in  extreme  cases — as  for  instance  where  a 
considerable  part  is  covered  with  water,  or  otherwise  irre- 
claimable—be considered  such  a  misrepresentation  as  to 
•entitle  a  purchaser  to  be  discharged.  (?z) 

2.  (a)  Purcliaser  insisting  on  the  contract,  there  being 
no  condition  for  compensation. 

§  1 222.  Although,  as  a  general  rule,  where  the  vendor 
has  not  substantially  the  whole  interest  he  has  contracted 

(Ti)  S.  C     Sf»e  too  Leyland  v.  lllingworth,  («)  S.   C.  27  (per  Turner,  L    J     See  too 

2  De  G  F.  &  J  ,  248.  Johnson  v.  Smart,  2  Glflf.,  151  ("  substantial 

(0  f-aclilan  v".  Uevnolils,  Kay,  52.  and  convenient "  awelling.kouse). 
(to)  Dimmock:  v.  Hallett,  L   K.  2  Ch.,  21. 


584        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

to  sell,  lie,  as  we  have  seen,  cannot  enforce  the  contract 
against  the  purchaser,  yet  the  purchaser  can  insist  on  hav- 
ing all  that  the  vendor  can  convey,  with  a  compensation  for 
the  difference  (o) 

§  1S23.  "If,"  said  Lord  Eldon,(^)  "a  man,  having- 
partial  interests  in  an  estate,  chooses  to  enter  into  a  con- 
tract, representing  it,  and  agreeing  to  sell  it,  as  his  own,  it 
is  not  competent  to  him  afterwards  to  say,  though  he  has 
valuable  interests,  he  has  not  the  entirety  ;  and  therefore 
the  purchaser  shall  not  have  the  benefit  of  his  contract. 
For  the  purpose  of  this  jurisdiction,  the  person  contracting 
under  those  circumstances  is  bound  by  the  assertion  in  his 
contract  ;  and,  if  the  vendee  chooses  to  take  as  much  as  he 
can  have,  he  has  a  right  to  that,  and  to  an  abatement ;  and 
the  court  will  not  hear  the  objection  by  the  vendor,  that 
the  purchaser  cannot  have  the  whole. "(<7)' 

§  1234.  The  principle  was  acted  on  by  Lord  Notting- 
ham, in  the  case  of  Cleaton  v.  Gower,(r)  where  the  defendant 
Gower  was  tenant  for  life  of  certain  estates  in  Shropshire, 
and  he  and  his  late  father  agreed  with  the  ijlaintiff  that  the 
plaintiff  should  open  and  work  certain  mines,  and  should 
enjoy  the  minerals  raised  for  ten  years,  if  the  defendant  or 
his  issue  male  should  so  long  live,  at  a  yearly  rent  of  £25. 
The  i^laintiff  sought  a  specific  performance  of  this  contract : 
the  defendant  objected  that  he  was  only  tenant  for  life,  and 
subject  to  account  for  waste,  and  that  he  could  not  execute 
the  contract  because  it  was  inconsistent  with  his  power :  the 
court  decreed  the  defendant  to  execute  the  contract  so  far 
as  he  was  capable  of  doing  it,  and  likewise  to  satisfy  the 
plaintiff  such  damages  as  he  had  sustained  in  not  enjoying 
the  premises  according  to  the  contract. 

§  1335.  The  principle  is  also  well  illustrated  by  Lord 

(o)  See  e.  g.  per  Turner,  L.  J  ,  In  Tluphes  Day,  1  Ves.  Sen.,  224;  Milliifan  v.  Cooke,  16 

y  Jones,  3  De  G.  P\  &  J.,  315    The  authority  Ves.,  1;  Pale  v.  Lister.  16  Ves.,  7;  Uill  v. 

of  James  V.  Lichfield,  L.  R.  9  Kq.,  seems  at  Buckley,  17  Ves.,  394;  Western  v.  Russell,  3 

least   questionable.     Compare    Phillips    v.  V.  &  B.,  187;  Neale  v.  Macktnzie,  1  Ke.,  474; 

Miller  L.  R  9  C.  P.,  196,  IOC   P.,  420,  with  Bennett  v.  Fowler.  2  Beav.,302;  Sutherland 

Caballero  v.  Henty,  L    R.  9  Ch.,  447.    See,  v.  Briggs,  1  Ha.,  26,  particularly  34;  Wilson 

however,  Keays  v   Carroll,  I.  R.  8  Eq  ,  97.  v.  AVilliams.  3  .'ur.  N.  S.,810  (Wood  V.  C); 

(p)  In  Mortlocb  v.  Buller,  10  Ves,  315.  and  cf.  Dyas  v  Cruise,  2  .Jon.  &  L.,  487. 

Iq)  See  accordingly  Attorney -General    v.       (r)  Finch,  164. 


J  Clark  V.  Reins,  12  Gratt.,  98;  Waters  v.  Travis,  9  John.,  450;  Herbers  v> 
Gadsden,  6  Rich.'sEq.,  281;  Voorhee  v.  De  Myer,  o  Sandf.'s  Ch.,  614;  Jacobs 
V.  Locke,  2  Ired.'s  Eq.,  286;  Erwin  v.  Myers,  46  Pa.  at.,  96;  Mapier  v.  Dar- 
lington, 70  id  ,  64;  Weatherford  v.  James,  3  Ala.,  170. 


COMPENSATION. 


585- 


Bolin,ul)roke'  s  case,  {s)  before  Lord  Tliiulo w.  The  incumbent 
of  a  living  had  contracted  with  a  tenant  in  remainder  for  the 
purchase  of  the  avowson,  and  on  the  faith  of  the  contract 
had  built  a  much  better  house  on  the  glebe  than  he  would 
otherwise  have  done  :  the  tenant  for  life  refusing  to  concur 
in  the  sale,  Lord  Thurlow  compelled  the  tenant  in  remainder 
to  convey  a  base  fee  for  levying  a  fine,  with  a  covenant  to 
suffer  a  recovery  on  the  death  of  the  tenant  for  life. 

§  la^G.  In  Wheatley  v.  Sladef^  Shad  well,  V.  C,  held 
the  principle  under  discussion  not  to  apply  where  a  large 
part  of  the  property  could  not  be  conveyed  ;  and  con- 
sequently, the  contract  in  that  case  being  for  the  sale  of  a 
lace  manufactory,  and  it  turning  out  that  the  vendors  were 
only  entitled  to  nine-sixteenths  of  the  whole,  and  that  those 
parts  were  subject  to  a  debt  which  would  exhaust  nearly 
the  wdiole  of  the  purchase- money,  he  refused  specific  per- 
formance. The  vice  chancellor's  decision  appears  to  have 
been  influenced  by  the  circumstance  that  the  vendors  entered 
into  the  contract  under  a  mistaken  impression  that  they 
were  possessed  of  the  entirety  of  the  property.  But  the 
case,  even  if  it  can  thus  or  otherwise  upon  its  own  particular 
circumstances  be  supported,  is  not,  it  is  submitted,  likely 
now  to  be  followed.  For  it  will  be  shown  that,  though  the 
difllerence  between  the  property  contracted  to  be  sold  and 
that  which  the  vendor  can  actually  convey  may  be  great, 
the  court  will  generally,  notwithstanding  this  circumstance, 
enforce  the  c5ntract  where  it  sees  that  its  intention  is  the 
sale  of  whatever  interest  the  vendor  has. 

§  1297.  Indeed  the  tendency  of  the  court  in  recent  years 
has  been  to  apply  the  principle  liberally.  Thus  where  two 
vendors  contracted  to  sell  two-sixths  of  certain  leaseholds 
"  together  with  all  other  their  rights  and  interests  therein," 
and  it  turned  out  that  they  were  only  entitled  to  two  twenty- 
first  parts  each,  the  purchaser  was  held  entitled  to  specific 
performance  of  the  contract  to  the  extent  of  the  vendors' 
interests,  with  a  proportionate  abatement  of  the  purchase- 
money,  (w) 

(s)  ]  Sch.   &  Lef.,  19  n.,  quoted  by  Lord  also  Maw  v.  Topham.  49  Beav.,  576,  where 

Cottenham  in  Great  Western  Railway  Co.  v.  the  vendors    were    only    entitled  lo  three- 

BlrminRham  and  Oxford  Junction  Railway  lourtha. 

Co    2  Ph.,  605.  (?<)  Jones  V.  Evans,  17  L.  J.  Ch..  469.    See 

(/)  4  Sim.,  126.     See  the  observations  of  too  Leslie  v.  Crommelin,  I.  R.  2  Eq.,  134. 
Lord  St.  Leonards  on  this  case,  Vend.,  263; 


586        FRY  ON  [SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

§  1228.  Again,  where  A.,  wlio  had  only  an  estate  jyer 
autre  vie  in  property,  the  remainder  in  fee  belonging  to  his 
wife,  contracted  to  sell  the  fee  simple  to  B.  (who  was  ignor- 
ant of  the  state  of  the  title),  and  then  got  his  wife  to  concur 
with  him  in  conveying  it  to  C.  (who  knew  of  B.'s  contract), 
it  was  held  that  B.  was  entitled  to  have  a  conveyance  from 
C.  of  A.'s  interest,  with  compensation  in  respect  of  his  wife's 
interest  which  he  was  unable  to  convey  or  bind  without  her 
consent.  (v5) 

§  1229.  So  where  vendors  contracted  to  sell  the  entirety 
-of  certain  freeholds,  and  it  was  afterwards  discovered  that 
they  were  entitled  to  an  undivided  moiety  only,  the  pur- 
chaser obtained  a  decree  for  the  specific  performance  of  the 
contract  by  the  vendors  to  the  extent  of  their  moiety,  with 
an  abatement  from  the  purchase  money  of  one-half  the 
amoii  nt.  {w) 

§  12:i<l>.  And  so  where  A.  and  B.  contracted  to  sell  lease- 
hold property  to  C,  and  on  examining  the  title  it  appeared 
that  A.  was  entitled  to  a  moiety  subject  to  a  mortgage  for 
its  full  value,  and  that  B.  had  no  interest  at  all — facts  which 
were  not  known  to  C.  at  the  time  when  he  entered  into  the 
contract — C.  was  held  entitled  to  an  assignment  of  A.'s 
moiety,  on  the  terms  of  covenanting  to  pay  the  rent  and 
perform  the  covenants  in  the  lease,  and  also  to  pay  the 
mortgage-debt,  and  to  indemnify  A.  in  resjject  to  those  lia- 
bilities, (re) 

§  1231.  In  each  of  the  cases  referred  to  i^i  the  last  four 
sections,  the  purchaser  was  unaware,  at  the  time  when  he 
entered  into  the  contract,  of  the  imperfection  of  the  vendor's 
title.  (?/)  But  even  if  the  purchaser  has  from  the  first  been 
aware  of  the  state  of  the  title,  that  circumstance  will  not 
necessarily  exclude  him  from  the  benefit  of  the  principle 
under  consideration.' 

(v)  Baruesv.  Wood,  L.  R.  8  Eq.,  42-1.    Cf.        {x)  Horrocks  v    Rigby,  9  Ch    D.,  ISO. 
Xelthorpe  v.  Holgatc,  1  Coll.,  203.  (y)  See  supra,  §  453  et  seq. 

(w)  Hooper  y.  Smart,  L.  R.  18  Eq.,  683. 

'  The  law,  as  it  now  exists  in  this  country,  is  stated  by  Mr.  Justice  Story. 
After  considering  the  numerous  conflicting  cases  on  the  subject,  he  says: 
"  Tliere  is,  however,  a  distinction  upon  this  subject,  which  is  entitled  to  con- 
sideration, and  may,  perhaps,  reconcile  the  apparent  diversity  of  judgment  in 
some  of  the  authorities.  It  is,  that  courts  of  equity  ought  ni>t  to  entertain  bills 
for  compensation  or  damages,  except  as  incidental  to  other  relief,  where  the 
contract  is  of  such  a  nature  that  an  adequate  remedy  lies  at  law  f(jr  such  com- 
pensation or  damages.     But,  where  no  such  remedy  hes  at  law,  there  a  peculiar 


COMPENSATION.  587 

§  1333.  Thus,  in  a  recent  case,  real  estate  stood  limited 
hy  marriage  settlement  to  such  uses  as  A.  and  his  wife 
should  appoint,  and  in  default  of  appointment  to  the  use  of 
the  trustees  of  the  settlement  during  the  wife's  life,  in  trust 
for  her  separate  use,  with  renuiinder  to  A.  in  fee.  A.  agreed 
to  sell  the  fee  simple  to  C.  by  a  contract  in  which  the  wife's 
interest  was  mentioned,  but  which  went  on  to  say  that  A. 
would  procure  a  proper  assurance  to  be  executed  by  all 
proper  parties  ;  afterwards  the  purchaser  actually  paid  over 
the  purchase-money  to  the  trustees,  but  the  wife  refused  to 
oonvey  lier  interest.  Bacon,  V.  C,  held  that  C.  was  entitled 
to  have  the  purchase  completed  to  the  extent  of  A.'s  rever- 
sion in  fee,  with  comp^-nsation  for  the  life  interest  of  the 
wife  and  a  lien  on  the  fund  in  the  hands  of  the  trustees. (?") 
"If,"  said  the  Vice  Chancellor,   "a  man  enters  into  a  con- 

(a)  Baker  v  Coi,  4  Cli.  D  ,  464  (cf.  S.  C   on    gulsh  Castle  v.  Wilkinson,  L.  R.  5  Ch.,  535, 
demurrer,  3  Ch.  D.,  359)      See  too  Wilson  v.    infra,  §  1236. 
Williams,  3  Jur.  N.  S.,  Slu.    (  f.  and  clisiiii- 


ground  for  the  interference  of  courts  of  equity  seems  to  exist,  in  order  to  pre- 
vent irreparable  mischief,  or  to  avoid  a  fraudulent  advantage  being  tal^en  of 
the  injured  party.     Thus,  where  there  has  been  a  part  performance  of  a  parol 
contract  for  the  purchase  of  hxnds,  and  the  vendor  has  since  sold  the  same  to  a 
bona  fide  purchaser  for  a  valuable  consideration  without  notice:  in  such  a  case, 
inasmuch  as  a  decree  for  a  specific  performance  would  be  ineffectual,  and  the 
breach  of  the  contract  being  by  parol,  would  give  no  remedy  at  law  for  com- 
pensation or  damages,  there" seems  to  be  a  just  foundation  for  the  exercise  of 
-equity  jurisr.iction."     Eq    Jur.,  J^  798      See  the  case  of  Robertson  v.  Hogs- 
heads, 3  Leigh,  mi.     It  has  also  been  said,  upon  the  highest  authority,  that 
where  the  vendor  never  had  any  title  to  the  laud  contracted  to  be  sold,  or  where 
he  has  conveyed  the  same  subsequent  to  the  making  of  the  contract,  so  that  he 
has  not  the  power  specifically  to  perform  his  contract,  and  that  tU  fact  ts  kmton 
to  the  vendee,  the  latter  cannot  tile  a  bill  in  equity  for  the  mere  purpose  of  ob- 
taining compensation  in  damages,  for  the  nou-performance  of  the  contract  by 
the  vendor:  but  he  must  resort  to  his  remedy  at  law  for  that  purpose.     But 
where  the  defendant  deprives  himself  of  the  power  to  perform  his  contract  spe- 
cifically, durinq  the  pendency  "fa  suit  against  him,  to  compel  such  performance, 
the  court  will  retain  the  suit;  and  will  award  to  the  complainant  a  compensa- 
tion in  damages,  for  the  nou-performance  of  the  contract  by  the  defendant. 
The  principle  on  which  this  is  based  is  to  prevent  a  multiplicity  of  suits.  ^  Be- 
sides, the  plaintiff,  who  had  a  iiood  cause  of  action  when  his  bill  was  tiled, 
ought  not  to  be  turned  out  of  co\irt,  by  the  mere  act  of  the  defendant,  without 
either  the  relief  for  which  he  originally  filed  his  bill,  or  a  compensation  m  lieu 
of  it.     But  while  a  court  of  equity  does  not  entertain  jurisdiction  where  the 
sole  object  of  the  bill  is  to  obtain  a  compensation  for  the  breach  of  a  contract, 
except  "when  the  contract  is  of  equitable  cognizance  merely,  it  would  seem  that 
if  the  complainant  filed  his  bill  in  good  faitli,  supposing  at  the  time  he  insti- 
tuted his  suit  that  a  specific  performance  could  be  granted,  and  wt  knoinng 
that  the  defendant  had  previously  parted  with  the  title,  the  bill  may  be^ retained 
for  compensation.     VVa-lworth,  C3h.,  Moss  v.  Elmendorf,  11  Paige,  277;  Hatch 
V   Cobb,  4  Johu.'s  Ch  ,  559.     Kent,  I'h.,  Kimpshall  v.  Stone,  5  id.,  \m;  AVood- 
ward  V.  Harris,  2  Barb.'s  Sup.  Ct.  R.,  439;  VVillard's  Eq.  Jur.,  291;  see  Wis- 
wall  V.  McGowan,  1  Hoff.'s  Ch.,  125. 


688        FKY  ON  SPECIFIC  PEKFOMMANCE  OF  CONTJiACTS. 

tract  to  sell  something,  representing-  that  he  has  the  entire 
interest  in  it,  or  the  means  of  conveying  the  entire  interest, 
and  receives  the  price  of  it  and  does  not  perform  his  con- 
tract, then  the  other  party  to  the  contract,  who  has  parted 
with  liis  money  or  is  i-eady  to  pay  his  money,  is  entitled  to 
be  placed  in  the  same  joosition  he  would  be  in  if  the  con- 
tract had  been  completed  ;  or  if  not,  by  compensation  to  be 
placed  in  the  same  position  in  which  he  would  be  entitled 
to  stand." («) 

§  ]^:i3.  It  is  obvious  that,  in  thus  proceeding,  the  court 
is  executing  the  contract  cij  pres,  or  rather  perhaps  is  carry- 
ing into  execution  a  new  contract,  (&)  a  course  in  which 
difficulties  sometimes  arise  which  put  restrictions  on  the 
aijplicatiou  of  the  princix3le  under  discussion.  These  have 
now  to  be  considered. 

§  1234.  The  principle  will  not,  it  seems,  be  applied  where 
the  alienation  of  the  partial  interest  of  the  vendor  miglit 
prejudice  the  rights  of  third  persons  interested  in  the  estate. 
Thus  where  a  tenant  for  life  without  impeachment  of  waste 
under  a  strict  settlement  had  contracted  for  the  sale  of  the 
fee,  the  court  refused  to  compel  him  to  alienate  his  life 
interest,  on  the  ground  that  a  stranger  would  be  likely  to 
use  his  liberty  to  commit  waste  in  a  manner  different  from 
a  father,  and  more  prejudical  to  the  rights  of  those  in 
remainder,  (c) 

§  l^S.*.  If  the  purchaser  is,  from  the  first,  aware  of  the 
vendor  s  incapacity  to  convey  the  whole  of  what  he  con- 
tracts for,  he  cannot,  generally,  insist  on  having,  at  an 
abated  price,  what  the  vendor  can  convey,  (r/) 

I  I'^^SO.  Thus  where  a  husband  and  Avife  signed  a  con- 
tract for  the  sale  of  the  wife's  fee  simple  estate  to  the 
plaintiff,  who  knew  from  the  plain  language  of  the  contract 
the  true  state  of  the  title,  it  was  held  that,  as  the  plaintiff 
clearly  never  could  have  believed  for  a  moment  that  the 
husband  could  sell  the  fee  simple,  he  was  not  entitled  to 
have  a  conveyance  of  all  the  husband's  interest,  /.  e.  his 
estate  for  the  joint  lives  of  himself  and  his  wife  and  his 

(n)  4  Ch.  D.,  469.  (c)  Thomas  v.  Dering,  1  Ke  ,  729.  Of.  8iipra»- 

(b)  Seeper  J.oril  Langdale,  M.B.,  in  Thomas    §  StS  et  seq 
V.  Bering,  1  Ke.,  746.  {d)  Cf.  bupra,  §  1231. 


COMPENSATION.  589 

estate  by  curtesy  with  an  abatement  of  the  pnrchase-money; 
and  the  bill  was  accordingly  dismissed,  (e) 

§  11337.  Similarly  where  vendors  were  entitled  only  to 
three-fonrths  of  the  property,  and  the  pnrchaser  was  at  the 
time  he  filed  his  bill  aware,  or  had  good  reason  to  believe, 
that  no  good  title  could  be  made  to  the  whole  of  the 
premises,  Lord  Romilh%  M.  R.,  held  that,  though  he  might 
probably  have  recovered  damages,  yet,  as  he  chose  to  lile  a 
bill  for  specihc  performance,  he  was  not  entitled  to  any  abate- 
ment from  the  i)urchase-mone3%  but  that  he  might  take 
without  abatement  the  three-quarters  which  the  vendors 
could  convey. (/')  And  it  has  been  decided  that  where  a 
person  has  dealt  with  a  tenant  for  life  for  a  certain  lease, 
being  at  the  time  aware  that  it  would  be  in  excess  of  the 
tenant  for  life's  power,  and  so  endeavoring  to  put  a  fraud 
upon  the  settlement,  he  will  not  afterwards  be  allowed  to 
call  for  a  lease  from  the  tenant  for  life  to  the  extent  of  his 
interest :  the  contract  was  not  at  the  time  it  was  entered 
into  a  fair  and  proper  one,  and  the  coui't  therefore  would 
not  interfere,  (p') 

^  1238.  In  the  case  of  Edward  Wood  v.  Marjoribanks,(^) 
the  purchaser  of  an  advovvson  discovered,  after  accepting 
the  title,  that  the  benefice  was  subject  to  a  mortgage  to 
Queen  Anne's  bount}^  which  he  might  have  discovered 
before  :  there  had  been  no  misrepresentation  or  willful  con- 
cealment on  the  part  of  the  vendors :  on  bill  filed  by  the 
purchaser  for  specific  performance  with  compensation, 
Stuart,  V.  C,  decreed  specific  performance,  but  without 
compensation,  and  ordered  the  purchaser  to  pay  the  costs 
of  the  suit ;  and  this  decision  w^as  affirmed  by  Knight  Bruce 
and  Turner,  L.  J.  J. 

§  l!33i>.  Where  there  is  a  defect  in  the  quantity  of  the 
estate,  the  principal  on  which  the  abatement  is  calculated  is 
'prima facie  acreage.  But  where  woodland  was  sold  as  so 
many  acres,  and  the  w^ood  as  having  been  valued  at  so  much, 

(fi)  Castle  V.  Wilkinson,  L.  R.  5  Ch.,  535.  St.  Leonards  appears  to  doubt  this  decision. 

Of.  and  distinguish  Hooper  v.  Smart,  L.  R.,  Vend.,  257;  and  it  certainly  seems  difficult 

IS  Eq.,  683,  supra,  §  1229;  Barker  v.  Cox,  4  to  reconcile  it  with  some  of  the  more  recent 

Ch.  D  ,  464,  supra,  1232.    See  too  Keayes  v.  Ciises  already  cited  supra,  §  1227  et  seq. 
Carroll.  1.  R.  8  Eq.,  97;  Fairhead  v.  .-iouthee,        (g-)  O'KourKe  v.  Percival,  2  Ball  &  li.,  58. 
11  \V.  R.,  739.  {h)  1  Gifl-.,  384;  3  De  G.  &  J.,  329;  7  H.  L. 

(/)  Maw  V.  Topham,  19  Beav.,576.    Lord  C.,806. 


690         FRY  ON  SPECIFIC  PEKFOKMAXCE  OF  CONTUACTS. 

the  abatement  was  for  so  mucli  as  the  soil  covered  with 
wood  would  be  worth  without  the  wood.(/) 

§  1340.  Where  the  difference  in  value  of  the  interest 
contracted  for  and  the  interest  that  can  actuallj^  be  con- 
veyed is  incapable  of  computation,  the  court  will  not,  in- 
deed cannot,  enforce  specific  performance.  (,/)  But  having 
regard  to  some  of  the  decided  casps  ah-eady  referred  to,(Z:) 
it  is  conceived  that  the  court  will  seldom  now  consider  a 
difficulty  of  this  kind  insuperable. 

§  1341.  In  one  case  what  was  contracted  to  be  sold  was 
an  absolute  and  indefensible  estate  in  fee,  and  it  turned  i^'Ut 
that  the  vendors  held  under  a  crown  grant,  containing  va- 
rious reservations  and  conditions  with  a  proviso  for  re-entry 
on  breach  of  condition.  The  court  considered  that  the 
l^roper  amount  of  compensation  was  not  estimable,  but  held 
that  the  purchaser  was  not  bound  to  take  the  property  with- 
out compensation,  and  therefore  was  entitled  to  the  pay- 
ment with  interest  of  a  part  of  the  purchase-money  that  he 
had  paid,  and  to  a  lien  on  the  estate  for  the  amount. (Z) 

§  1243.  Althougl],  where  there  are  no  data  from  which 
the  amount  of  compensation  can  be  ascertained,  the  court 
cannot  enforce  the  contract  with  compensation, (w)  the  ob- 
jection that  the  compensation  is  unascertainable  is,  as  has 
Ibeen  already  in  substance  observed,  one  which  the  court  is 
unwilling  to  entertain  ;  and  it  grants  relief  with  compensa- 
tion in  many  cases  in  which  the  ascertainment  of  the  amount 
to  be  paid  cannot  be  said  to  be  certain  or  exact,  but  only 
the  reasonable  estimate  from  the  evidence  of  competent  per- 
sons ;  as,  for  instance,  where  compensation  was  granted  for 
the  existence  in  a  stranger  of  the  right  to  dig  coals  in  the 
lands  sol d.(7?)' 

(i)  Hill  V.  Biukley,  17  Ves.,  394.    See  too  life  was  dismissed  by  Lord  Lyndhurst  (then) 

McKcDzie  V.  ELesketh.T  Cii.  D  675,  where  the  C.   B      Cf.  Thomas  v.    Dering,  1  Ke  ,   729; 

reut  was  reduced  proportionately  to  the  de-  Graham  v.  Oliver.  3  Beav  ,  124. 

flclency  of  acreage,  and  Powell  v.  Elliott,  L.  (/.;)  See  supra,  §  1227  tt  seq 

K  10  (.'h.,  424,  430.  iO  VVestmacott  v.  Robins,  4  De  G.  F.  &  J., 

(j)  See  supra,  §  1212,  infra,  §  1248,  and  Col-  390. 

Her  V.  .lenliins.  You..  29.5,  whtre  bill  by  pur-  (to)  '^ee  infra,  §  1212 

chaser's  heir  lor  specific  perlormance  with  (w)  Ramsden  v   Hirst.  4  .Jur.  N.  S.,200.   Cf. 

compensation  for  an  outstanding  lease  for  Powell  v.  Elliot,  L.  K.  lOCh.,  424. 


'  Eule  as  to  cmapenmtion.']  In  oider  tliat  a  party  be  entitled  to  compensa- 
tion, the  defect  complained  of  mu.st  he;— l.st.  Such  that  it  can  l)e  made  the 
subject  of  compen.satiou  or  of  recompense  in  damages  2d.  It  must  be  a  case 
in  which  the  court  is  satisfied  that  the  purcha.ser  would  not  have  declined  the 
contract  had  he  known  the  defect  at  the  time  of  the  piu'chase,  Byer  v.  Marks, 
2  Sweeney,  715.     Spencer,  J.,  said  in  this  case:  1st.  A  purchaser  may  insist 


COMPETiTSATIOlSr.  691 

§  1343.  Again  it  iriay,  it  is  conceived,  be  laid  down  gener- 
ally that,  wherever  the  court  sees  that  the  enforcement  of 
the  contract  with  compensation  \vonld  be  unjust  or  unfair, 
or  would  disappoint  the  reasonable  expectation  of  the  par- 
ties, there  it  refuses  to  take  such  a  course.' 

§  1344.  Thus,  where  an  estate  which  really  contained 
only  11,814  acres  was,  by  a  bond  fide  mistake  of  the  vend- 
or's agent,  described  in  the  contract  as  containing  21,750 
acres,  and  it  appeared  that  the  vendor  had  accepted  the 
price  on  a  computation  of  the  rental  of  the  estate.  Lord 
Komilly,  M.  R.,  considered  that  to  force  him  to  sell  the  es- 
tate for  little  more  than  half  the  price  contracted  for  would 
be  a  hardship,  and  that  the  case  was  one  of  mistake  ;  and 
he  accordingly  held  that  the  purchaser  might,  at  his  option, 
either  take  the  actual  quantity  at  the  contract  price  or  have 
the  contract  rescinded,  but  that  he  was  not  entitled  to  spe- 
cific performance  with  an  abatement  for  the  deliciency  of 
acerage.  (o) 

§  1345.  A  purchaser  cannot  insist  on  the  vendor  per- 

(0)  Earl  of  Durham  v  Lcgard,  34  Beav.,  Colver  v.  Clay,  7  Beav  ,  188;  and  distinguish 
611.  Cf  the  remarks  of  Lord  Abinger.  €  J  .  Hill  v.  Buckley.  17  Ves  ,  394  (.supra,  §  1-230), 
in  Price  v.  North,  2  Y.  &  C.  Ex  ,  626,  and    and  McKenzie  v.  Ilesketb,  7  Ch.  D.,  675. 


upon  a  good,  valid  and  unincumbered  title.  2d.  He  is  entitled  to  receive  sub- 
stantially, from  bis  vendor,  all  tbe  property  for  wbicb  be  contracted.  3d.  If 
he  obtains  such  a  title,  and,  by  the  conveyance  offered,  obtains  substantially 
the  property  for  which  he  contracted,  a  court  of  equity  will  enforce  perform- 
ance on  his  part,  otherwise  not.  These  general  rules  are  not,  in  my  opinion, 
modified  or  affected  by  those  relating  to  compensation,  which  the  court  will 
enforce,  in  all  proper  cases,  in  favor  of  the  purchaser  against  the  vendor,  when 
specific  performance  has  been  or  shall  be  decreed;  as,  for  instance,  in  the  case 
of  a  slight  or  immaterial  deficiency  in  the  estate,  a  variance  of  description,  or 
an  incumbrance  affecting  the  title.  The  doctrine  of  compensation,  as  a  rule  of 
equity,  follows  these  and  like  cases,  in  order  to  pay  the  ]jurchaser  for  those 
slight  defects  that  in  equity  he  may  be  entitled  to,  if  in  equity  he  should  be 
compelled  to  fulfill  the  contract  of  purchase;  and,  in  such  cases,  compensation 
follows  as  a  matter  of  right,  and  I  hold  must  be  provided  for  in  the  decree." 
See,  also.  Caun  v.  Cann,  iJ  Sim.,  530;  King  v.  Bardean,  «  John.'s  Ch.,  38; 
Morss  V.  Elmendorf,  11  Paige's  Ch.,  277;  Powell  v.  Elliott,  L.  R.,  10  Ch.,  424; 
Lee  v.  Home,  27  Mo.,  521;  Hepburn  v.  Auld,  5  Cranch,  262;  Hcbers  v.  Gads- 
den, 6  Rich.'s  Eq.,  284;  Stockton  v.  Union  Oil  Co.,  4  W.  Va.,  273;  Bell  v. 
Thompson,  38  Ala.,  633;  Smith  v.  Fly,  24  Tex.,  345;  Scott  v.  Bilgerry,  40 
Miss.,  119.  Where  there  is  a  pecuniary  charge  against  an  estate  which  is 
amply  protected  by  an  adequate  security,  equity  will  compel  a  vendee  to  re- 
ceive the  title  in  such  a  case.  Halsey  v.  Grant,  13  Ves.,  75;  Horniblow  v.  Shir- 
ley, 13  id.,  181;  Fildes  v.  Hooker,  3  Mad.,  193;  Thompson  v.  Carpenter,  4  Pa. 
St.,  132. 

1  Where  A.  purchased  of  B.  686  acres  of  land  for  cultiva'.lon,  and  the  ven- 
dor's title  to  2U9  acres  thereof  was  found  defective,  it  wac  ho'  '  'hat  the  vendee 
should  not  be  compelled  to  take  the  residue,  although  it  lay  disliix  ',  and  separated 
from  the  other  portion  by  a  pubhc  road.  Jackson  v.  I.igon,  ;;  A-^-,,h,  161 ;  see 
Bryan  v.  Read,  1  Dev.  &  Bat.'s  Ch.,  78;  Read  v.  Noe,  \j  Yorg.    ;.'83. 


^592        FRY  ON  SPECIFIC  PEIiFOKMANCE  OF  COXTIIACTS. 

forming  the  contrnrt,  giving  an  indemnity  against  a  defect, 
unless  the  indemnity  was  contracted  for.(^) 

§  134©.  In  Bainbridge  v.  Kiunaird,(<7)  a  vendor  (since 
deceased)  had  contracted  to  sell  to  tlie  plaintiff  a  property 
Avhich  was,  in  common  with  other  estates,  subject  to 
a  charge  of  £10,000  raisable  for  the  benefit  of  the  vendor's 
sisters.  Lord  Romilly.  M.  R.,  held  tliat  the  plaintiff  might 
have  a  simple  decree  for  specific  performance  against  the 
trust  devisees  of  the  vendor,  but  was  not  entitled  either  to 
compensation  in  respect  of  the  charge  or  to  an  indemnity 
against  it. 

§  1217.  Within  what  limit  of  time  after  the  conclusion 
of  the  contract  a  claim  for  comi)en:?ation  must,  if  made  at 
all,  be  made,  is  a  question  that  may  obviously  in  many 
cases  be  important, 

§  1S48.  There  is,  it  is  conceived,  no  doubt  that  the  court 
will  enforce  compensation,  at  any  time  before  the  com- 
pletion of  the  transaction  by  the  execution  of  the  conveyance 
and  the  payment  of  all  the  purchase-money,  in  respect  of 
any  matter,  the  fit  subject  of  compensation,  which  has 
arisen  before  that  time,  and  whether  before  or  after  the  con- 
clusion of  the  contract.  Thus,  where  an  estate  was  sold  as 
tithe  free,  and,  after  a  claim  had  been  started  by  the 
incumbent  of  one  parish,  the  conveyance  was  executed,  but 
a  part  of  the  purchase-money  w^as  set  aside  as  an  indemnity 
against  this  claim :  the  claim  came  to  nothing,  but,  before 
the  indemnity  fund  w^as  transferred,  it  appeared  that  the 
land  was  in  another  parish,  and  was  subject  to  tithe  to  its 
incumbent :  it  was  held,  on  a  bill  filed  by  the  purchaser, 
that  he  was  entitled  to  compensation  in  respect  of  these 
tithes  out  of  the  fund.('r) 

§  1249.  And  on  the  same  principle  the  court  will  allow 
comiDensation  for  deterioration  which  may  have  occurred  in 
the  value  of  the  estate,  between  the  time  when  the  contract 
ought  to  have  been  completed  by  the  vendor,  and  the  time 
when  he  does  in  fact  make  out  the  title,  (5)  whether  it  have 
arisen  by  the  willful  default  or  merely  by  the  negligence  of 

(P)  Balnianno  v.  Lumley,  1  V.  &  B.,  224;  353.    Cf.  (under  the  old  practice)  Gator  v. 

per  Liord  Eldon  In  Paton  v.  Brebner,  1  Bli.,  Earl  of  Pembroke,  1  Bro.  C.  C,  301 ;  2  Bro. 

■66;  Aylett  v.  Ashton,  1  My.  &  Or.,  105;  cf.  C  0.,  282;  Frank  v.  Basnett.  2  My.  &  K.,  618; 

supra,  §  119J.  Phelps  v.  Paothero,  7  De  G.  M.  &  G.,  722. 

(5)  32  Beav  ,  346.  (s)  Binks  v.  Lord  Kokeby,  2  Sw.,  222. 

{r)  Crompton  v.  Lord  Melbourne,  5  Sim., 


coMPEisrsATioN.  593 

the  vendor  or  his  tenants,  (i^)  Thus,  where  stone  had  been 
subtracted  from  a  quarry  pending  a  suit  for  specific  per- 
formance of  a  contract  to  grant  a  license  to  work  it,  com- 
pensation was  obtained  by  means  of  a  supplemental  bill.('?^) 
§  1^50.  Whether,  after  conveyance  has  been  executed 
^nd  purchase-money  paid,  the  court  still  has  jurisdiction  to 
enforce  comjDensation,  is  a  question  on  which  there  has  been 
«ome  conflict  of  judicial  opinion. (?))  It  is  submitted  that 
rights  to  compensation  under  the  contract  may  exist  even 
^f  ter  the  conveyance  and  payment  have  been  executed  and 
made  ;  and  further  that,  whenever  such  rights  exist,  they 
may  now  be  asserted  in  the  same  action  as  that  in  which 
specific  performance  is  claimed.  Where  the  contract  gives 
no  right  to  compensation  the  case  is,  of  course,  different,  (zo) 

2.  (b)  PurcJiaser  insisting  on  the  contract,  tJtere  being  a 
cond/ition  for  compensation. 
§  1351.  The  language  of  the  condition  must  of  course 
have  an  important  effect  on  the  subject  for  compensation 
under  any  particular  contract,  and  in  every  case  serves  at 
least  to  indicate  the  nature  of  the  matters  in  respect  of 
which,  and  the  circumstances  under  which,  both  parties 
intended  that  the  purchaser  should  have  a  right  to  com- 
pensation. But  the  purchaser  is  not,  it  is  conceived,  bound 
to  show  that  the  subject-matter  of  his  claim  is  of  a  kind 
expressly  embraced  by  the  words  of  the  condition  :  except 
in  so  far  as  there  may  be  anything  in  the  contract  excluding 
his  claim,  or  empowering  the  vendor  to  defeat  it — which  are 
matters  to  be  determined  according  to  the  ordinary  rules  of 
•construction(a?) — he  is  entitled  not  merely  to  the  right 
expressly  given  to  him  by  the  condition,  but  to  the  full 
measure  of  relief  applicable  to  the  case  according  to  the 
general  princij)les  already  discussed :  in  other  words,  his 
right  to  compensation  under  the  condition  is  generally 
cumulative  to  a  purchaser's  ordinary  right  to  it:  but  he 
must,  of  course,  submit  to  the  cor j  esponding  limitations  of 
the  general  I3rincii3les. 

(0  Foster  v.  Deacon,  3  Mad.,  394.    Cf.  per  (v)  Compare  the  cases  cited  in  §§  1252, 1253, 

Lord  Eldon  In  Binks  v.  Lord  Rokeby,  2  Sw.,  infra. 

226.  (ao)  Consider  Brett  v.  Clowser,  5  C.  P.  D., 

(M)  Nelson  v.  Bridges,  2   Beav.,  239.    On  376. 

the  question   of  deterioration    see   further  (a;)  Consider  the  observations  of  Lord  West- 

inlra.  Part  V.  chap.  v.  §  1404  et  Eeq.  bury  in  Cordingley  v.  Cheeseborough,  4  De 


38 


G.  F.  &  J.,3S4. 


594        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

§  1S53.  In  accordance  with  a  principle  already  stated,  (?/)• 
it  lias  been  held,  in  cases  decided  before  and  also  since,  the 
passing  of  the  Judicatnre  acts,  that  a  condition  for  com- 
pensation may  be  enforced  notwithstanding  that  the  con- 
veyance has  been  executed.  In  Cann  v.  Cann,(2)  Shadwell, 
y .  C. ,  decided  that  a  right  of  the  purchaser  to  receive  com- 
pensation, under  such  a  condition,  for  a  misstatement  (dis- 
covered after  possession  taken)  in  the  particulars  as  to  the 
value  of  the  property  was  not  at  all  affected  by  the  circum- 
stances of  his  having  paid  the  whole  purchase-money  into 
court  and  taken  a  conveyance.  Subseqviently  the  court  of 
exchequer  unanimously  adoi:>ted  the  same  view  :{a)  and  the 
jurisdiction  has  again  been  emphatically  asserted,  upon  a 
full  consideration  of  the  authorities,  by  Jessel,  M.  R.,  in  a 
case  in  which  his  lordship  held  a  purchaser  entitled  to  the- 
benefit  of  a  condition  for  compensation,  in  respect  of  a 
deficiency  of  acreage  discovered  by  measurement  after  the 
execution  of  the  conveyance.  (5) 

§  lSo3.  On  the  other  hand,  in  a  case  wdiere  the  land  sold 
was  described  as  "available"  for  a  building  site  for  a  ware- 
house, and  after  the  completion  of  the  purchase  the  pur- 
chaser discovered  that  under  the  land  ran  a  culvert  (not 
mentioned  in  the  particulars)  with  which  he  could  not 
interfere,  Malins,  V.  C,  held  that,  there  being  no  question 
of  fraud,  the  purchaser  could  not  after  conveyance  have  the- 
benelit  of  a  condition  for  compensation  in  respect  of  errors  or 
misstatements  :{c)  and  his  lordship  subsequently  expressed 
his  deliberate  adherence  to  this  \iew.{d) 

§  1354.  The  decisions  referred  to  in  the  last  preceding 
section  appear  to  be  irreconcilable  with  the  authorities 
previously  cited.  It  is  suggested  that  if  a  vendor  wishes  to 
preclude  the  j)0ssibility  of  controversy  on  the  point,  he  may 
effectually  do  so  by  simply  inserting  in  the  contract  words 
to  the  effect  that  compensation  shall  be  taken  and  given 

(y)  Supra,  §  1250;  and  cf.  per  Hall,  V.  C,  (c)  Manson  v.  Thacker,  7  Ch.  D.,  620.    Cf.- 

In  Jones  v.  Cliflford,  3  Ch.  D.,  779,  792.  Brett  v.  dowser,  5  C.  P  D.,  376. 

(s)  3  Sim.,  447.    Cf.  Horner  v.  Williams,  1  (d)  Besley  v.  Besley,  9  Ch.  D.,  103;  Allen  v. 

Jones  &  C,  274.  Richardson,  13  Ch    D.,  .524,  541.  where  the 

(a)  In  Bos  V.  Helsham,  L.  R.  2  Ex.,  72.  Vice  Chancellor  expressly  dissented  from 

ib)  Re  Turner  and  Skelton,  13  Ch.  D.,130.  Re  Turner  and  SkcUon,  13  Ch.  L>.,  524,  con- 
See  too  Phelps  V.  White,  5  L.  R  Jr.,  318,  sidering  that  the  doctrine  of  caveat  emptor 
where  the  purchaser  was  held  entitled  to  applies  to  such  cases.  Consider  Browlie  v. 
compensation,  though  he  had  means  of  dis-  Campbell,5App.  C,  925,936;  Leuty  v.  Hillas,. 
covering  the  error  before  completion;  and  6  W.  K.  51,  2  De  G.  &  J.,  110. 
distinguish  Brett  v.  Clowser,  5  C.  P.  D.,  376. 


COMPENSATIOISr.  595 

only  for  errors  or  other  things  discovered  before  the  com- 
pletion of  the  purchase. 

§  1255.  In  consonance  with  the  general  principles  on 
which  the  court  deals  with  conditions  of  sale,(e)  its  tendency 
is  to  put  a  liberal  and  comprehensive  construction  upon 
conditions  giving  compensation  to  a  purchaser,  and  a  strict 
one  upon  any  which  limit  his  right  to  it. 

§  1956.  Thus,  where  by  an  innocent  mistake  the  par- 
ticular described  part  of  the  estate  as  customary  leasehold 
renewable  every  twenty-one  years,  whereas  in  fact  there  was 
no  such  custom  to  renew;  the  fourth  condition  of  sale 
empowered  the  vendor  to  vacate  the  sale  upon  objection 
taken  to  the  title,  and  another  condition  stipulated  that  if, 
through  any  mistake,  the  estate  should  be  improperly 
described,  or  any  error  or  misstatement  should  not  vitiate 
the  sale,  but  the  vendor  or  purchaser  should  pay  or  allow 
compensation  for  it;  Lord  Hatherley  (then  Wood,  V.  C.,) 
held  that  the  misstatement  fell  within  the  condition  for 
compensation,  and  further  that  it  was  not  an  objection  to 
title,  within  the  meaning  of  the  fourth  condition,  enabling 
the  vendor  to  vacate  the  sale.(/) 

§  1357.  And  where  land  was  described  in  the  particulars 
as  containing  753  square  yards,  whereas  it  actually  con- 
tained only  573  square  yards,  and  one  of  the  conditions  pro- 
vided that  if  any  error,  misstatement,  or  omission  in  the 
particulars  should  be  discovered,  the  same  should  not 
annul  the  sale,  nor  should  any  compensation  be  allowed  by 
the  vendor  or  purchaser  in  respect  thereof,  it  was  held  by 
Malins,  Y.  C,  that  such  a  condition  must  be  construed  as 
intended  to  cover  small  unintentional  errors  and  inaccuracies, 
but  not  to  cover  reckless  and  careless  statements,  and  that 
so  large  a  deficiency  as  180  square  yards  out  of  753  did  not 
come  within  the  condition ;  and  that  the  purchaser  was 
therefore  entitled  to  compensation.  (^) 

§  1358.  AYhere,  however,  the  conditions  stipulated  that 
(1)  the  admeasurements  should  be  presumed  to  be  correct, 
but  if  any  error  were  discovered  therein,  no  allowance 
should  be  made  or  required  either  way;  (2)  if  any  error  of 

(c)  See  Part  V.  chap.  i.  §  1153  etseq.;  and  (g)    Whitemore   v.   Whitemore,  L.    R  ,  8 

per  Lord  Westbury  in  Cordingley  v.  Cheese-  Eq.,  603.    Cf.  Porlman  v.  Mill,  2  Russ.,  570. 

borough,  4  De  G.  F.  &  J. ,  381  et  eeq.  574. 

(/)  Painter  v.  Newby,  11  Ha  ,  26. 


596        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

any  kind  were  made  in  the  description  of  tlie  premises  such 
error  should  not  invalidate  the  sale,  but  a  fair  compensation 
should  be  given  or  taken  ;  and  (8)  if  the  purchaser  should 
make  any  objection  as  to  compensation  or  otherwise  which 
the  vendor  should  be  unwilling  to  remove  or  comply  with, 
the  vendor  should  be  at  liberty  to  vacate  the  sale  :  and  the 
area  of  the  property,  stated  in  the  particulars  to  7,683 
square  yards,  was  found  by  the  purchaser  upon  actual 
admeasurement  to  be  only  4,350  square  yards:  and  the 
vendor  before  suit  offered  to  vacate  the  contract,  but  the 
purchaser  refused  the  offer  and  insisted  upon  the  perform- 
ance of  the  contract  with  compensation  for  the  deficiency  : 
Lord  Westbury  held  that  the  right  of  the  purchaser  must 
be  determined  by  the  operation  of  the  conditions  read  in 
connection  with  one  another,  and  that,  though  the  court 
probably  would  not,  at  the  vendor's  instance,  have  enforced 
the  condition  as  to  erroneous  admeasurement  where  the 
error  was  so  great,  the  purchaser  could  not,  in  the  face  of 
that  condition,  have  an  allowance  for  the  deficiency  of 
area.(7i)' 

§  1259.  It  has  also  been  decided  that  where  the  con- 
ditions, while  providing  that,  if  any  mistake  appear  to  have 
been  made  in  the  description  of  the  property  or  the  vendor's 
interest  therein,  it  shall  not  annul  the  sale,  but  shall  be  the 
subject  of  compensation,  at  the  same  time  provide  that,  if 
any  objection  is  persisted  in,  the  vendor  may  rescind  the 
contract,  then,  if  the  purchaser  persists  in  a  claim  for  com- 
pensation which  really  involves  an  objection  to  the  title,  the 
vendor  may  rescind  the  contract,  and,  if  he  does,  the  court 
will  not  afterwards  give  the  purchaser  any  relief  in  respect 
of  the  condition  for  compensation.  (^) 

§  1260.  Another  illustration  of  the  principle  that  a 
purchaser's  right  to  claim  compensation  may  be  abrogated, 
notwithstanding   a    condition    for  compensation,    by  the 

(h)  Cordlngley  v.  Cheeseborough,  4  De  G.  affirmed  L.  R.  6  Ch.,  91.  And  see  Cordlngley 
F.  &  J.,  379,  affirming  8.  C.  3  Giff.,  496.  v.  Cheeseborough,  4  De  G.  F.  &  J.,  379. 

(»)  Mawson  V.  Fletcner,  L.  R.  10  Eq.,  212, 

?  See  Hepburn  v.  Auld,  5  Cranch,  262,  and  Foley  v.  McKeon,  4  Leigh,  627, 
where  a  lot  was  advertised  for  sale  at  auction  as  containing  nearly  two  acres. 
At  the  sale,  the  auctioneer  stated  that  there  were  nearly  two  acres,  and  pointed 
out  the  boundaries— the  sale  was  in  gross :  and  there  was  in  reality  but  one 
acre  and  twelve  poles.     Held,  that  the  deticiency  should  not  avoid  the  sale. 


COMPENSATION.  597 

operation  of  another  term  of  the  contract,  is  afforded  by  the 
case  of  Williams  v.  Edwards.  (/)  There  A.  had  contracted 
to  sell  to  B.  certain  freehold  property,  and  the  contract  con- 
tained a  stipulation  that  errors  in  the  description  of  the 
premises  should  not  vacate  contract,  but  a  reasonable  abate- 
ment or  equivalent  should  be  made  or  given,  but  it  was  also 
stipulated  that,  if  B.'s  counsel  should  be  of  opinion  that  a 
marketable  title  could  not  be  made  at  the  time  appointed 
for  the  completion  of  the  purchase,  the  contract  should  be 
void  and  be  delivered  up  to  be  cancelled  ;  and  B.'s  counsel 
was  of  opinion  that  a  good  title  could  be  made  only  to  two- 
thirds,  and  that  one-third  was  held  for  a  life  only :  the 
purchaser  insisted  on  specific  performance  with  compensa- 
tion ;  but  it  was  refused,  because  the  contract  was  by  its 
special  terms  void  under  the  circumstances. 

§  1^61.  In  a  case  which  came  before  the  House  of  Lords, 
the  particulars  stated  that  the  fines  in  the  manor  of  T., 
which  was  the  subject-matter  of  the  sale,  were  arbitrary, 
and  also  that  the  clear  profits  of  the  manor  for  the  last  eight 
years  had  averaged  £150  a  year  ;  and  one  of  the  conditions 
of  sale  provided  for  compensation  being  given  for  errors  and 
misstatements.  It  turned  out  that  by  the  custom  of  the 
manor  only  one  class  of  fines  was  arbitrary  ;  but  that  the 
clear  profits  of  the  manor  exceeded  £200  a  year.  The  lord- 
ships refused  to  give  the  purchaser  compensation  for  the 
misstatement  as  to  the  fines,  considering  that,  reading  the 
statements  in  the  particulars  as  a  whole,  there  had  been 
no  substantial  misrepresentation :  but  it  was  intimated  in 
the  speeches  of  Lord  Brougham  and  Lord  Cottenliam(A-) 
that,  if  the  misstatement  as  to  the  fines  had  been  a  sub- 
stantial one,  the  impossibility  of  computing  the  proper 
amount  of  compensation  would  have  prevented  its  being 
given.  (/; 

§  1S63.  Damages  may  be  said  to  be  a  species  of  com- 
pensation, inasmuch  as  they  are  awarded  in  order  to  make 
good  to  the  purchaser  some  loss  or  expense  which  he  has 
suffered  or  been  put  to  in  connection  with  the  contract,  but 

U)  2  Sim..  78.    See  per  Lord  Westbury  in  (h)  Wliite  v.  Cuddon,  8  CI  &  F.,  786,  792. 

Cordlngiey  v.  ChecBeborougli,  4  De  G.  F.  &  (l)  White  v.  Cuddon,  8  CI.  &  F.,  766.    See 

J  ,  885;  and  cf.  Hudson  v.  Buck,  7  Cti.  D.,  supra,  §§  1212, 1240  et  seq. 
683,  687. 


C98        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

they  are  so  distinct  a  form  of  relief  that  they  may  most 
conveniently  be  discussed  in  a  separate  chapter. (m)' 

(m)  See  Infra,  Part  V.  chap.  111.  §  1263  et  eeq. 

'  Small  and  trifling  incumbrances  on  land  are  generally  disregarded  Winne 
V.  Reynolds,  6  Paige,  407;  Ten  Broeck  v.  Livingston,  1  John.'s  Ch.,  357.  But, 
although  both  quit-rents,  and  entire  rent  charges,  are  subjects  of  compensation 
(Esdaile  v.  Stephenson,  1  S.  &  St ,  124;  Horniblow  v.  Shirley,  13  Ves.,  83; 
Halsey  v.  Grant,  id..  80),  yet,  where  the  charge  is  only  a  portion  of  a  rent 
charge  issuing  out  of  an  entire  estate,  the  vendee  will  not  be  compelled  to  ac- 
cept compensation,  or  to  complete  the  contract,  unless  the  vendor  can  procure 
a  certain  appointment  of  the  charge  (Barnewell  v.  Harris,  1  Taunt.,  431),  pro- 
vided the  purchaser  did  not  become  such  under  a  clear  understanding  that  he 
was  to  be  exonerated  in  a  specified  and  different  mode;  if  that  were  the  case, 
he  cannot  insist  upon  a  better  indemnity  than  that  agreed  upon,  although  it 
may  not  be  an  absolutely  perfect  exoneration.  Casmajor  v.  Strode,  2  Swanst., 
356.  Miller  v.  Chetwood,  1  Green's  Ch.,  199,  affords  an  example  of  the  strin- 
gency of  the  rule.  In  that  case  it  was  held,  that,  on  a  bill  by  the  vendor  for  a 
specific  performance  of  a  contract  for  the  sale  of  a  certain  tract  of  land,  although 
the  quantity  of  the  tract  is  not  stated  in  the  contract,  the  defendant  may  show 
by  parol  evidence  that  the  complainant,  before  the  sale,  represented  to  the  de- 
fendant that  the  tract  contained  nine  acres,  when,  in  fact,  it  contained  only 
about  six.  And,  it  was  further  said,  it  makes  no  difference  in  such  a  case, 
that  the  sale  was  made  by  the  tract  and  not  by  tlie  acre,  and  that  the  vendee 
lived  in  the  neighborhood  of  the  ground,  subject  daily  to  his  observation,  for 
this  constitutes  no  excuse  for  the  misrepresentations  of  the  vendor.  Upon 
these  grounds  specific  performance  was  refu.sed.  In  a  case  where  it  would  be 
difficult  to  ascertain  the  injury  resulting  from  a  breach  of  contract,  or  the  sum 
in  damages  by  which  the  injury  might  be  compensated,  the  Supreme  Court  of 
the  United  States  have  decided  that  they  will  not  themselves  ascertain  the  in- 
jury, nor  direct  an  issue  of  quantum  domrdficahis.  Pratt  v.  Law,  9  Cranch, 
456;  Pratt  v.  Campbell,  2  Pet.,  354. 


DAMAGES.  599 


CHAPTER  III. 

OF   DAMAGES. 

§  1363.  In  early  times,  the  Court  of  Cliancery  did  not 
•entirely  disclaim  jurisdiction  in  respect  of  damages,  where 
they  were  incident  to  the  subject-matter  already  in  con- 
tention before  the  court,  (a)  Subsequently  the  jurisdiction 
was  disowned,  and  a  broad  distinction  set  up  between  com- 
pensation and  damages,  the  extent  and  measure  of  the  one 
Ibeing  regarded  as  different  from  that  of  the  other,  so  that 
(to  follow  the  illustration  given  by  Lord  Eldon)  if  A.  con- 
tracted to  sell  B.  an  estate  tithe  free,  and  B.  contracted  to 
sell  it  to  C.  on  the  same  conditions,  and  it  was  found  that 

A.  could  not  convey  tithe  free,  he  might  be  compelled  by 
the  court  to  make  compensation  for  the  difference  in  the 
Talue  of  the  property,  but  not  for  the  damage  sustained  by 

B.  from  being  unable  to  complete  his  contract  with  C.{b) 

§  1264.  However,  in  a  case  which  came  before  the  lords 
justices  in  the  year  1855,  the  jurisdiction  of  the  Court  of 
Chancery  to  award  damages  for  the  want  of  a  literal  per- 
formance of  a  contract  which  it  had  directed  to  be  specifically 
performed  was  re-asserted.  "It  is  the  constant  course  of 
the  court,"  said  Turner,  L.  J.,  "in  the  case  of  the  vendor 
and  purchaser,  where  a  sufficient  case  is  made  for  the  jDur- 
pose,  to  make  an  inquiry  as  to  the  deterioration  of  the 
estate,  and  in  so  doing,  the  court  is,  in  truth,  giving 
damages  to  the  .purchaser  for  the  loss  sustained  by  the  con- 
tract not  having  been  literally  performed. "(c) 

§  1265.  In  the  year  1858  an  express  power  of  awarding 
damages  in  cases  of  specific  performances  was  conferred 
upon  the  Court  of  Chancery  by  the  chancery  amendment 
act  of  that  year(rZ)  (commonly  called  Lord  Cairns'  act), 
whereby  it  was  enacted  (section  2)  that,  in  all  cases  in  which 
the  Court  of  Chancery  then  had  jurisdiction  to  entei  tain  an 

(a)  Cleaton  v.  Gower.  Finch,  1C4;  City  of  (6)  Per   Lord  Eldon   in  Todd  v.   Gee,  17 

London  v.  Nasli,  3   Atk  ,  51-2,  where  Lord  Ves  ,  278;  Jenkins  v.  Parkinson,  2  My.  & 

Hardwicke  refused  speciflc  performauce,  but  K.,  5 

relieved  by  way  of  dii  mages,  to  be  ascertained  (c)  In  Protherov.  Phelps,  7De  G.  M.  &G. , 

toy  an  Issue  ol  quantum  damniflcatus.  734. 


600        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

application  for  the  specific  performance  of  any  contract,  it 
should  be  lawful  for  the  same  court,  if  it  should  think  fit, 
to  award  damages  to  the  party  injured  either  in  addition  or 
in  substitution  for  such  specific  performance  ;  and  that  such 
damages  might  be  assessed  in  such  manner  as  the  court 
should  direct. 

It  is  to  be  noticed  that  the  jurisdiction  given  by  this  enact- 
ment is  a  discretionary  one,  and  enables  the  court  to  deprive 
a  suitor  of  what  would  otherwise  be  in  his  right  to  specific 
performance. 

§  1366.  It  was — as  indeed  the  language  of  the  second 
section  of  Lord  Cairns'  act  clearly  shows — a  condition  pre- 
cedent to  the  Court  of  Chancery's  awarding  damages  under 
that  act  that  the  plaintiff  should  show  himself  to  have  been 
entitled,  at  the  time  when  he  commenced  his  suit,  to  some 
equitable  relief  of  the  nature  specified  in  that  section. 
Accordingly  w^here  a  plaintiff  prayed  for  the  performance  of 
an  alleged  contract  by  a  company  to  allot  shares  to  him,, 
and  also,  if  all  the  shares  had  been  allotted  to  other  persons, 
for  damages,  and  it  appeared  that  all  the  shares  had  been 
allotted  before  the  filing  of  the  bill,  it  was  held  that,  specific- 
performance  having  from  che  first  been  impossible,  the 
claim  for  damages  also  failed,  (e) 

§  1267.  In  a  case  decided  by  Lord  Hatherley  (when 
AYood,  V.  C),  the  contract  was  that  the  defendant  should 
grant  a  lease  of  a  paper  mill  to  M. ;  that  M.  should  pay  £122' 
for  sundry  articles  on  the  premises,  and  should  execute 
sundry  improvements  ;  and  that,  if  the  defendant  should 
fail  to  grant  a  valid  lease,  he  would  repay  the  £122  and  all 
outlay  on  improvements.  M.  paid  the  £122  and  expended 
about  £5,000  on  the  premises  ;  but  afterwards,  on  investiga- 
tion of  the  title,  it  appeared  that  the  defendant  could  not 
grant  a  valid  lease  according  to  the  contract.  Upon  bill 
filed  by  M.  for  specific  performance,  or,  if  the  defendant 
could  not  grant  a  valid  lease,  for  repayment  of  M.'s  outlay 
and  damages,  it  was  argued  for  the  defendant  that  there  could 
be  no  specific  performance  of  the  contract  to  grant  a  lease^ 
that  the  alternative  contract  to  repay  outlay  was  not  a  sub- 

(d)  21  &  22  Vlct.,  c.  27  V.  Earl  of  Shaftesbury,  L.  R.  7  Eq  ,270;  Scott 

{e)  Ferguson  t.   Wilson,  L.  R.  2  Ch.,  77.  v.   Rayment,    L    R.   7  Eq.,  112;    Rogers  v. 

Compare  Howe  v.  Hunt,  31  Beav,  42U,  and  Challis,    27    Beav  ,    175;    and   Middleton  v. 

Hilton  V.  Tipper,  16  W.  R.,  888,  with  Frank-  Magnay,  2  H.  &  M.,  236. 

linski  V.  Ball,  33  Beav.,  560.  See,  also,  Lewers 


DAMAGES.  601 

ject  for  specific  performance,  and  that  damages  would  not 
be  given  where  specific  performance  was  impossible.  But 
these  arguments  were  repelled  by  the  judge,  who  said, 
"There  is  an  implied  contract  in  every  case  between  vendor 
and  purchaser,  that  the  purchaser  shall  have  a  lien  on  the 
property  to  the  extent  of  the  purchase-money  he  has  paid, 
and  here  there  is  an  express  stipulation  that  the  money 
expended  shall  be  repaid.  This  right  will  sustain  a  claim 
for  damages  just  as  much  as  the  right  to  specific  perform- 
ance of  a  contract  to  grant  a  lease  which  has  dropped  by 
reason  of  the  impossibility  of  performance. "(/) 

§  1268.  In  a  case  decided  in  the  year  1866,  where,  after 
specific  performance  of  a  contract  had  been  decreed,  certain 
facts  occurred  from  which  it  was  alleged  that  damage  had 
arisen  to  the  plaintiffs,  Kindersley,  V.  C,  held  that  the 
Court  of  Chancery  had,  under  Lord  Cairns'  act,  no  jurisdic- 
tion to  make  after  decree,  on  motion  in  the  cause,  an  order 
for  assessing  damag^-s  ;  inasmuch  as  such  an  order  would  in 
effect  be  a  supplemental  decree  founded  on  what  had 
occurred  since  the  decree  was  made.(/7) 

§  1269.  Now,  however,  the  jurisdiction  conferred  upon 
the  Court  of  Chancery  by  Lord  Cairns'  act,(^)  and  also  all 
the  powers  of  granting  damages  which  before  the  passing 
of  the  judicature  acts  were  exercisable  by  the  common  law 
courts,  are  by  virtue  of  the  judicature  act,  1878  (sections  16, 
76),  vested  in  the  high  court  of  justice  ;  and  by  the  last 
mentioned  act  it  is  expressly  enacted  (section  24)  (7)  that 
the  high  court  and  court  of  appeal,  in  the  exercise  of  their 
respective  jurisdictions,  in  every  cause  or  matter  pending 
before  them  respectively  shall  grant,  either  absolutely  or  on 
such  reasonable  terms  as  to  them  shall  seem  just,  all  such 
remedies  whatsoever  as  any  of  the  parties  thereto  may 
appear  to  be  entitled  to,  in  respect  of  any  and  every  legal 
or  equitable  claim  properly  brought  forwai'd  by  them 
respectively  in  such  cause  or  matter ;  so  that,  as  far  as 
possible,  all  matters  so  in  controversy  between  the  parties 
may  be  completely  and  finally  determined,  and  all  multi- 
plicity of  legal  proceedings  concering  any  of  such  matters 
avoided. 

(/)  Middleton  v.  Magnay,  2  H.  &  M.,  237.    ment,  upon  defendant's  default,  see  supra, 
{(/)  Corporation  of  Hythe  v.  East,  L.  R.  1    Part  IV.  chap.  iv.  §  1142. 
Eq.,  620.    As  to  granting  damages  after  judg-       (ft)  see  Fritz  v.  Hobson,  14  Ch.  D.,  542. 


■602        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

§  1270.  The  court  therefore  can  now  give  damages  in  any 
-of  the  following  cases,  viz.: — 

(1)  In  substitution  for  specific  performance  where  there 
is  a  case  for  specific  performance — under  Lord  Cairns'  act. 

(2)  Where  there  is  no  case  for  specific  performance — 
under  the  judicature  acts.(^) 

(3)  In  addition  to  specific  performance  in  whole  or  in 
part— under  Lord  Cairns'  act,  and  probably  also  under  the 
judicature  acts. 

^  1271.  Notwithstanding  the  judicature  acts,  the  ob- 
servance of  the  condition  mentioned  in  a  previous  section(y) 
is  still  obligatory  upon  the  court  in  the  exercise  of  its  dis- 
cretionary jurisdiction  under  Lord  Cairns'  act ;  and  damages 
in  addition  to  or  in  substitution  for  specific  performance 
will  be  given  by  virtue  of  that  jurisdiction  only  when  the 
plaintiff  had  a  case  for  specific  performance  at  the  time 
when  he  issued  his  writ. (A*) 

§  1973.  The  court's  jurisdiction  in  damages  is  an  apt 
and  flexible  instrument  for  doing  exact  justice  under  the 
diverse  and  complicated  circumstances  of  many  of  the  cases 
upon  which  the  court  has  from  time  to  time  to  adjudicate. 

§  1373.  For  instance,  where  the  plaintiff  contracted  with 
the  defendant  to  take  a  lease  of  property  belonging  to  the 
latter,  for  the  purpose,  as  he  knew,  of  carrying  on  a  busi- 
ness which  the  plaintiff  intended  to  carry  on  there,  and, 
owing  to  the  defendant' s  willful  refusal  to  perform  his  x^art 
of  the  contract,  the  plaintiff  was  for  fifteen  weeks  unable  to 
commence  his  business  ;  the  court,  in  addition  to  giving 
judgment  for  the  specific  performance  of  the  contract, 
awarded  £250  to  the  plaintiff  by  way  of  damages,  in  respect 
of  his  loss  of  profits  during  the  fifteen  weeks.  (Z)  , 

§  1374.  Where  the  i^laintiff  was  at  the  time  when  he 
filed  his  bill  entitled  to  specific  performance,  and  also  to 
damages  for  injury  occasioned  to  him  by  tlie  defendants' 
delay  of  performance,  and  before  the  suit  could  be  brought 
to  a  hearing  the  defendants  ]3erformed  the  contract ;  it  was 
held  that  the  plaintiff  was  nevertheless  justified  in  bringing 
his  suit  to  a  hearing  for  damages.  (???.) 

(i,  See  infra,  §  1278.  2),  26  VV .  R  ,  3GS ;  Wesley  v.  Walker,  iO  W.  R., 

(j)  Supra.  §  1266.  36S.  Consuler  Hyani  v.  Terry,  25  Sol.  .Jo  ,371. 

(k)  While  V   liokty,  2«  W.  R  ,  133.  im)  (  <>ry  v.  Tlie  Thames  Iron  Works  and 

U)  Jauues  v.i.\Uller,6Ch.  D.,153;  S.C.  (So.    Shipbuildiiif;  <  o.,  il  W.   R  ,  .589;  cf.  S.  S.  (in 

Q.  l^.;3  L   K.  Q.  U.,181. 


DAMAGES.  603 

§  1375.  Sometimes  the  court  can  best  do  justice  by  en- 
forcing the  specific  performance  of  one  part  of  the  contract 
and  awarding  damages  for  breach  of  the  remainder.  Where, 
for  instance,  a  man  contracted  to  pull  down  an  old  house, 
to  rebuild,  and  to  accept  a  lease  of  the  new  building,  and 
then  made  default  in  rebuilding.  Lord  Hatherley  (then 
Wood,  y.  C.,)  held  the  intended  lessor  entitled  to  have 
damages  for  the  non-building,  and  also  specific  performance 
of  the  contract  to  accept  a  lease. (t?) 

§  1276.  Again  it  may  well  happen  that,  though  the  court 
has  jurisdiction  to  enforce  the  specific  performance  of  a  con- 
tract, the  justice  of  the  case  will  be  better  met  by  awarding 
damages  in  substitution.  Thus  where  a  railway  C(»mpany 
contracted  with  a  landowner  to  "  erect,  set  up  and  construct 
a  station,"  on  land  which  they  had  bought  from  him,  but 
the  contract  contained  no  further  description  of  the  station, 
and  no  stipulation  as  to.  the  user  of  it  when  erected  ;  and 
the  company  afterwards  refused  to  erect  a  station  on  the 
agreed  site ;  the  court  of  appeal  in  chancery,  considering 
that  it  could  not  satisfactorily  do  justice  by  means  of  a 
decree  for  si)ecific  performance,  directed  that  the  damage 
sustained  by  the  landowner  by  reason  of  the  non-perform- 
ance of  the  contract  should  be  ascertained  (by  an  inquiry  in 
chambers)  aiid  the  amount  paid  to  him  by  the  company.(o) 

^  1277.  It  may  happen  that  a  purchaser  finds  himself 
unable  to  obtain  specific  performance  of  a  contract  owing  to 
some  fatal  defect  in  his  vendor  s  title,  which  was  unknown 
to  him  (the  purchaser)  at  the  time  when  he  had  entered 
into  the  c(mtract.  In  such  a  case  damages  are  the  only 
possible  form  of  relief  ;  and  the  vendor  will  not  be  allowed 
to  escape  from  liability  to  pay  them  by  purporting  to 
rescind  the  contract  under  a  condition  entitling  the  vendor 
to  rescind  in  the  event  of  the  purchaser  making  any 
objection  or  requisition  in  respect  of  the  title  which  the 
vendor  is  unwilling  to  comply  with :  foi-  such  a  condition 
does  not  apply  to  a  case  where  the  vendor  has  not  any  title 
at  all.(77) 

§  1978.  Where  an  action  is   brought   for   specific   per- 

(n)  Soames  v.  Edge,  Johns..  669,  followed  (o)  Wilson  v.  Nortliamplon  and  Banbuiy 

in   MavtT  and    Corp(iratioi)   of   London    v.  juncti..n  Railway  Co  ,  L.  K.  it  Lh,  2i_9 

Soulhgate,  17  W.  1{.,  197.    Distinguibh  Xorris  (;>)  Bowman  v.  llj ia-id,  8  e  h._D_,  obh,  590; 

V.  JacKsoD,  1  J.  &  II..  319;  and  see  Samuda  cf.  Oaliel.  y  v.  Kanl^ay.'2l  L.  T.,  .4o.    bee  too 

<v  Lawford,  4  Uiff..  42.  supra,  I'art  III.  thap.  xxiv.  §  H  ib  et  seq. 


604         FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

formance,  and  specific  performance  is  refused  on  the  t^ole 
ground  of  a  mistake  by  the  defendant,  the  court  will  now 
consider  the  question  of  damages,  and  give  the  siime 
dariiages  as  would,  under  the  old  practice,  have  been  given 
in  an  action  at  law.  ((7) 

§  1979.  Where  there  was  a  case  for  damages,  the  Court 
of  Chancery  sometimes  directed  an  issue  to  ascertain  the 
amount.  (?•)  The  more  usual  course  was  to  direct  an  inquiry, 
in  chambers  as  to  the  sum  to  be  awarded  or  allowed :  and 
this  is  still  commonly  done.  (5)  In  some  recent  cases,  how- 
ever, the  damages  have  been  assessed  by  the  judge  himself 
at  the  trial,  and,  where  the  plaintiff  has  not  been  ready  with 
his  evidence  as  to  the  amount  of  damages,  the  trial  has  been 
adjourned  to  give  time  for  it  to  be  obtained.  It  seem& 
clearly  desirable  that  the  assessment  of  damages  should, 
wherever  practicable,  take  i)lace  at  the  trial,  without  any 
separate  inquiry :  for  otherwise  the  parties  are  virtually 
put  to  the  expense  of  two  trials  of  the  same  question. (^)' 

(cj)   Per  James  and  Cotton,  L.  J.  J  ,  In  man,  1  Sim.,  530:  also  Ord.  XXVf.and  Ord, 

Tamplii)  v  James,  15  Ch.  D.,  222,  223.  XXXVl.  rr.  26,  27. 

(r)  e.  g.  Corey  v.  The  Thames  Iron  Works  (x)  ^ee  Selon,  1285.    As  to  the  costs  of  such 

and  Shipbuilding  Co.,  11  W.  R  ,  r89;  S.  C.  (in  an  inquiry,  cf.  Slack  v.  Midland  Railway  Co., 

Q.   B.)   1>.  K.  3  Q    IJ.,    181.    Cf.   Nelson  v.  16Ch.  D.,81. 

Bridges,  2  Beav.,  239,  and  Fersusou  v.  Tad-  (t)  Jnques  v.  Millar.  6  Ch.  D.,  153;  Wesley 

V.  Walker,  26  W.  R  ,  368;  seton,  1319. 

'  AffreemeiU  to  rescind  contract,  renting  in  parol  only.]  Where  the  agreement 
to  rescind  a  contract  rests  only  in  parol,  such  rescission  must  be  proved  by  acts 
■which  can  leave  no  doubt  of  the  intent.  There  must  be  a  cancelling  of  the 
contract,  or  a  removal  from  the  possession,  or  some  act  which  will  make  the 
intent  positive.  Where  the  agreement  is  unexecuted,  it  must  be  clearly  pioved, 
and  must  be  founded  on  a  new  consideration.  Liiuer  v  See,  42  Pa.  S.,  I(j5; 
Pratt  V.  Morrow.  45  Mo.,  404;  Washington  v.  McGee,  7  T.  B.  Mour  ,  i;31;. 
Phelps  V.  Seely,  22  Graft.,  578. 

Example  of  insufficient  proof  of  rescission  of  the  sale  of  real  j^ropeity.]  For  an 
instructive  case,  see  Pipkin  v.  Allen,  24  Mo.,  520. 

Contract  rescinded,  both  parties  must  content  to  renew.]  A  contract  had  beea 
rescinded.  Held,  that  it  could  not  be  renewed  without  the  mutual  consent  of 
both  parties.     Lassen  v.  Mitchell,  41  111  ,  101. 

Tico  parcels  of  land  purchased  ;  rescission,  if  at  all,  must  be  as  to  both.]  A  con- 
tract was  entered  into  for  the  purchase  of  two  parcels  of  laud  for  a  detinite 
sum;  one  was  conveyed  at  the  time  and  the  other  was  to  be  when  both  were 
paid  for.  Held,  that  it  was  an  entire  purchase,  notwithstanding  two-thirds  of 
the  purchase  price  was  to  be  applied  to  one  of  the  parcels,  and  that  if  there  was 
a  rescission  at  all  it  must  be  as  to  both  parcels.     Fay  v.  Oliver,  20  Vt.,  118. 

What  imll  amount  to  an  abandonment  of  an  agreement?]  An  intention  to  re-^ 
scind  a  contract  of  sale  may  be  shown  bj'  circumstances,  or  it  may  be  shown 
by  such  a  coiu'se  of  action  as  establishes  clearly  that  such  was  the  intention  of 
the  party.     Wheeden  v.  Fiske,  50  N.  H.,  125;  Green  v.  Wells,  2  Cal.,  584. 

What  will  constitute  an  abandonment  f]  Whenever  either  party  so  conducts 
himself  that  his  conduct  can  be  viewed  in  no  other  light  than  that  of  a  relin- 
quishment of  the  contract,  it  will  be  regarded  as  rescinded.  Any  act  by  any  of 
the  parties  which  of  necessity  prevents  the  performance  of  the  mutual  agree- 


DAMAGES.  605 

ment  will  constitute  an  abandonment  Suber  v.  Pullin,  1  S.  C.  (N  S.).  273: 
Wright  V.  Haskell,  -45  Mo.,  4!<9;  see,  also,  Tibbatts  v.  Tibbatts,  (J  McLean,  80. 
Where  the  vendor  sold  the  land  to  a  third  person,  this  was  held  to  be  a  rescis- 
sion of  the  contract  of  sale.  Little  v.  Thurston,  58  Me.,  86;  Warren  v.  Rich- 
mond, 53  111.,  53.  Where  ejectment  was  brought  to  recover  the  land  m  pos- 
session of  the  vendee  under  a  parol  contract  of  sale,  this  was  held  to  be  a 
rescission  of  the  contract.  Hairston  v.  Jandsou,  42  ]Miss.,  3s0.  Where  the 
written  contract  of  sale  was  surrendered,  and  such  act  was  followed  by  acts 
which  were  inconsistent  with  its  continuance,  this  was  held  to  be  a  rescission. 
Crane  v.  De  Camp,  21  N.  J.  Eq  ,  414. 

When  application  of  rescimon  not  a  remssionf]  A  party  applied  for  the  re- 
scission of  a  contract  and  requested  the  other  party  to  rescind  it.  Held,  that 
such  application  did  not  amount  to  a  rescission,  and  that  it  did  not  imply  any 
breach  or  abandonment  on  the  part  of  the  applicant.  Picot  v.  Douglass,  46 
Mo.,  497. 

Mere  contract  ofaqencij.']  A  railroad  corporation  employed  a  party  to  obtain 
donations  and  right  of  way  for  an  extension  of  the  road ;  he  was  to  be  allowed 
a  large  proportion  of  the  amount  received  for  his  services  Held,  that  such 
contract  might  be  revoked  whenever  the  company  saw  fit.  The  following  is 
an  extract  from  the  opinion.  Per  curiam:  "We  can  regard  the  relations 
between  the  defendant  and  the  plaintiff,  created  by  the  instrument,  in  no  other 
right  than  that  of  principal  and  agent.  It  is  a  familiar  principle  at  law,  that 
an  agency  is  revocable  at  the  will  of  the  principal,  unless  the  power  conferred 
on  tiie  agent  be  given  for  a  valuable  consideration  or  as  a  security,  or  is  coupled 
with  an  interest.  It  is  not  claimed  that  the  authority  conferred  upon  the  plain- 
tiff was  based  upon  a  consideration,  or  was  given  as  a  security.  Is  it  a  power 
coupled  with  an  interest  ?  What  was  the  interest  of  plaintiff  ?  It  was  to  re- 
ceive a  certain  compensation  in  value  and  kind  of  the  donations  he  should 
receive  for  defendant.  His  interest  existed  in  that  which  should  be  produced 
by  the  exercise  of  the  power  conferred  upon  him.  Now,  it  is  plain  that  the 
thing  in  which  he  had,  or  rather  was  to  have,  an  interest  could  not  exist  until 
the  power  was  exercised  The  exercise  of  the  power  was  necessary  to  bring 
the  thing  in  which  he  was  to  have  an  interest  into  existence.  In  each  instance, 
where  a  donation  was  given,  the  power  was  exhausted  when  the  donation  was 
received.  Hence,  the  power  and  the  interest  were  not  united.  The  interest, 
coupled  with  a  power  which  gives  it  an  irrevocable  character,  must  be  in  the 
thing  upon  which  the  power  is  exercised,  and  not  in  that  which  may  be  pro- 
duced by  the  exercise  of  the  power.  Before  the  exercise  of  the  power  con- 
ferred by  the  instrument  in  question,  nothing  did  or  could  exist  in  which 
plaintiff  had  an  interest.  He  had  a  right  to  a  part  of  the  donations  which  he 
should  procure.  He  had  no  interest  in  a  thing,  but  a  right  to  a  thing  when  it 
should  be  created.  His  power,  therefore,  was  not  coupled  with  an  interest 
and  was  revocable  at  the  will  of  the  defendants."  Smith  v.  Cedar  Falls  and 
Minn.  R.  R.  Co.,  30  Iowa,  244. 

One  party  refusing  to  execute  a  substantial  pari  of  the  contract.]  Where  one 
party  to  an  agreement  refuses  to  execute  any  substantial  part  of  his  contract  by 
that  act  he  gives  the  other  party  to  the  mutual  agreement  the  option  to  rescind 
the  entire  contract  by  offering  to  restore  what  he  has  received  and  replacing 
the  parties  in  their  original  position.  This  is  true,  provided  the  offer  is  made 
within  a  reasonable  time,  and  the  parties  can  be  placed  in  their  original  posi- 
tion; the  offer  must,  however,  be  made  distinctly  and  unequivocally.  Webb 
V.  Stone,  24  N.  H  ,  282;  Allen  v.  Webb,  24  id.,  278;  Sumner  v.  Parker,  36  id., 
449;  Fay  v.  Oliver,  20  Vt.,  118;  Fletcher  v.  Cole,  23  id.,  114. 

Application  to  rescind  must  be  made  icithout  delay.]  Where  a  party  asks  for 
the  rescission  of  a  contract  deliberately  entered  into,  he  must  make  his  election 
with  all  due  promptness.  Lowber  v.'Selden,  11  How.  Pr.,  526;  Lawrence  v. 
Dale  3  John.'s  Ch.,  23,  41;  Wheaton  v.  Boker,  14  Barb.,  594;  Bruce  v.  Dav- 
enport, 3  Keyes,  474;  Tobey  v.  Crown,  37  Md.,  51;  Hunter  v.  Daniel,  4  Hare, 
420. 

Agreement  to  rescind  at  future  time;  waiver.]  There  was  an  agreement  that 
if  certain  acts  were  not  performed  at  a  future  day  that  the  contract  might  be 
rescinded.     Held,  that  either  party  might,  if  so  disposed,  stand  with  the  con- 


606         FRY  OlSr  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

sent  of  the  other,  cither  express  or  implied,  upon  the  terms  of  the  orijiinal 
contract;  he  may  waive  whatever  advantages  he  has  under  the  agreement  of 
waiver.     Echols  v.  Butler,  28  Miss.,  114. 

Example  of  fraud  diticorered  too  late  to  renc/'nd.]  A  purchaser  discovered  fiaud 
in  his  contract  and  raised  no  objection ;  afterwards  he  found  other  evidence  of 
fraud  and  did  so.  Held,  that  he  was  too  late  to  rescind  the  contract.  Patter- 
son, J.,  said:  "  To  entitle  him  to  do  so  he  should,  at  the  time  of  di.scovering  the 
fraud,  have  elected  to  n'liiidiate  the  whole  transaction.  Instead  of  doing  so, 
he  deals  with  that  for  which  he  now  says  that  he  never  legally  contracted. 
Long  after  this,  as  he  alleges,  he  discovers  a  new  incident  in  the  fraud.  This 
can  only  be  considered  as  strengthening  the  evidence  of  the  original  fraud,  and 
it  cannot  revive  the  riirht  of  repudiation  which  has  been  once  waived  "  Camp- 
bell v.  Fleming.  1  A.  &  E.,  40. 

Reference  to  determine  the  amount  of  dn mages.]  A  reference  is  usually  made 
to  a  master,  or  commissioner,  to  ascertain  the  amount  of  damages  in  an  action 
for  specific  performance.  Where  a  reference  has  been  ordered,  the  money 
should  be  brought  into  court.  Stevenson  v.  Jackson,  4o  Mich.,  702.  Wh<'re 
it  is  proper  that  a  jurv  should  assess  the  damages,  the  court  may  either  order 
an  a.ssessment,  or  remit  the  parties  to  an  action  at  law.  Milkman  v.  Ordway, 
lOH  Mass.,  2;:i2.  The  contract  could  not  be  specifically  enforced,  for  the  reason 
that  "it  was  not  mutual,  fair,  just  and  reasonable  in  all  its  parts;"  the  plain- 
tiff had  been  deprived  of  the  benefit  of  the  contract  by  the  defendant's  fraud. 
Held,  that  the  money  paid  should  be  returned  with  interest,  and  this  was  done 
without  ordering  an  issue  (juan/um  danmifentus.  Rider  v.  Gray,  10  Md.,  282^ 
See,  also,  Pratt  v.  Law,  S)  Cranch,  494. 

liule  as  to  measin-e  of  damages  in  specific  performance.']  Where  the  title  has 
failed,  without  the  fault  of  the  vendor,  the  proper  measure  of  damages  is  the 
purcha,se  price,  together  with  legal  interest.  Luckett  v.  Williamson,  37  Mo., 
808.  In  a  case  where  the  vendor  has  refused,  or  put  it  out  of  his  power  to 
make  title,  the  measure  of  damages  is  the  difference  in  the  value  of  the  estate 
at  the  time  the  agreement  ought  to  have  been  completed,  and  what  was  to 
have  been  paid,  if  that  value  exceeds  the  price  mentioned  in  the  agreement. 
Dustin  v.  Newcomer,  8  Ohio.  49;  Ilall  v.  Delaplaine,  5  Wis.,  206.  Clavton, 
P.  J.,  said  in  Burk  v.  Senill,  80  Pa.  St  ,  413:  "The  law  regulating  the  dam- 
ages to  be  recovered,  makes  a  distinction  between  the  cases  where  there  is  a 
fraudulent  breach  of  contract  and  those  where  the  breach  is  occasioned  by 
some  unforeseen  aod  unavoidable  obstacle.  As  where  one  covenants  to  convey 
a  good  title,  and  it  is  afterwards  discovered  that  he  does  not  possess,  and  by  no 
means  in  his  power  can  procure,  such  a  title,  or  the  wife  of  the  covenanter, 
without  any  collusion,  persuasion  or  request,  on  his  part,  refuses  to  join  in  the 
deed.  In  cases  of  this  kind,  when  the  covenanter  does  all  in  his  power  to  ful- 
fill his  contract,  and,  without  any  fault  of  his,  cannot  perform  it,  the  damages 
to  be  recovered  against  him  are  only  such  actual  and  immediate  losses  as  he 
may  have  suffered,  such  as  the  money  paid  with  interest  thereon,  the  time  lost 
and  expenses  incurred  in  examining  the  title,  conveyancing  expenses,  and  such 
work  or  improvements  as  he  nia}^  have  made  upf)n  the  land  upon  the  faith  of 
the  contract.  But  where  there  is  a  wanton  or  dishonest  refusal  to  perform  the 
contract,  or  where  the  covenanter,  by  some  fraudulent  act  on  his  part,  renders 
the  performance  impossible — as  where,  by  collusion  with  his  wife,  or  by  re- 
quest on  his  part,  she  refuses  to  sign  the  deed,  or  where  her  refusal  is  not  her 
own  free  and  uncontrolled  act,  but  made  at  the  implied  or  actual  request  cf 
her  husband — the  law,  in  such  a  case,  awards  full  compensatory  damages, 
and  permits  a  recovery  for  all  the  party  has  lost  by  reason  of  the  default  of 
the  other  party,  including  the  value  of  the  bargain,  and  all  injury  and  damage 
he  may  have  suffered  by  reason  of  any  act  of  bis  made  upon  the  faith  of  the 
broken  covenant."  Hoar,  J.,  said  in  Woodbury  v.  Luddj',  14  Allen,  1:  "The 
plaintiff  seeks  the  aid  of  a  court  of  equity,  to  compel  the  specific  performance 
of  the  defendant's  contract  to  convey  land.  The  defendant  is  unable  to  make 
a  perfect  title,  and  the  court,  at  the  plaintiff's  election,  will  compel  the  con- 
veyance of  so  much  as  the  defendant  can  convey,  and  will  award  comi>ensation 
in  the  nature  of  damages  for  the  deficiency.  The  defendant  has  not  undertaken 
to  apportion  the  contract.     If  he  was  sued  at  law,  the  whole  market  value  of 


DAMAGES.  607 

the  estate  would  be  the  measure  of  damage.  But  dividing  the  estate  may  very 
much  increase  the  proportionate  damages,  vpithout  any  corresponding  advan- 
tage to  the  defendant.  By  making  the  election,  the  plaintiff  undertakes  to  re- 
ceive what  the  defendant  never  agreed  to  give,  namely,  a  partial  conveyance 
of  the  estate;  and  equity  will  only  allow  this  ou  the  condition  that  the  defend- 
ant shall  not  thereby  be  subjected  to  unreasonable  injury.  The  i)laintif[,  in 
effect,  elects  to  take  satisfaction,  partly  in  land  and  partly  in  money;  and  if  he 
is  allowed  to  do  this,  he  should  only,  in  equity  be  allowed  to  receive  the  fair 
money  value  of  the  part  of  the  estate  which  is  not  conveyed  to  him.  In  the 
adjudged  cases,  though  this  is  sometimes  called  damages,  it  is  more  usually 
spoken  of  as  an  equitable  compensation  for  the  value  of  that  which  the  defend- 
ant does  not  convey.  It  is  not  always  proper  to  estimate  the  value  of  the  de- 
ficiency, at  the  average  price  per  acre.  The  true  inquiry  should  be,  how  much 
more  was  agreed  to  be  paid  by  reason  of  the  supposed  additional  quantity  ? 
Wilcoxon  v.  Calloway,  07  N.  C,  468.  Where  the  estate  is  of  uniform  value, 
the  price  agreed  upon  to  be  paid  per  acre,  would,  of  course,  furnish  a  proper 
measure  of  damages  in  a  case  of  excess  or  deficiency.  King  v.  Hamilton,  4 
Pet.,  311  Where  the  vendor,  in  an  executory  contract  for  the  sale  of  land, 
fails  to  make  title  without  fraud  or  bad  faith,  but  tlirough  an  inability  which 
was  not  known  to  him  at  the  time  of  contracting,  he  is  liable  for  nominal  dam- 
ages only.  3  Wm.  Black..  1078;  Conger  v.  Weaver,  20  N.  Y..  140.  Where 
the  vendee  insists  on  a  conve3^ance  of  a  part,  he  must  pay  to  the  vendor  the 
value  of  such  part  proportioned  to  the  price  which  was  to  have  been  paid  for 
the  whole.  Jacobs  v.  Locke,  2  Ired.'s  Eq.,  28(5;  Chandler  v.  Geraly,  T)  S.  C, 
5U1 ;  see,  however,  Stockton  r  Union  Oil  and  Coal  Co.,  4  W.  Va.,  273. 

Rule  as  to  damages  in  equitable  actions.'\  Where  the  claim  is  solely  for  dam- 
ages, whether  for  breach  of  the  contract  or  for  fraud  in  making  it,  and  it  is 
not  sought  to  rescind  it  altogether,  the  party  is,  as  a  general  rule,  confined  ta 
his  action  at  law ;  but  a  bill  to  have  the  contract  res'anded  for  fraud,  and  for 
the  recovery  of  damages,  lies,  though  it  does  not  ask  for  a  discover}^  Com- 
pensation in  damages  in  an  action  for  specific  performance,  is  an  incident 
merely.  Unless,  in  very  specific  cases,  chancery  takes  no  cognizance  of  suits 
for  damages  only,  founded  on  contract.  Hatch  v.  Cobb,  4  John.'s  Ch.,  559; 
Kempshall  v.  Stone,  5  id.,  198;  Moss  v.  Elmendorf,  11  Paige's  Ch.,  279;  Lynch 
V.  Willard,  6  John.'s  Ch.,  342;  Mayne  v.  Griswold,  3  Sand.,  408;  Newham  v. 
May,  13  Price,  732;  Sims  v.  McEwen,  27  Ala.,  184;  Doau  v.  Mauzey,  33  id., 
227;  Welch  v.  Bayard.  21  N.  J.  Ex.,  168;  Harrlspn  v.  Deramus,  83  Ala.,  463;, 
Richmond  v.  Dubuqe  R.  R.  Co.,  38  Iowa,  422;  Carroll  v.  Wilson,  22  Ark., 
32;  Stevenson  v.  Buxton,  87  Barb.,  13;  Horn  v.  Luddington,  32  Wis.,  73.  "  It 
must  be  under  very  special  circumstances  and  upon  peculiar  equities,  as,  for 
instance,  in  cases  of  fraud,  or  in  cases  where  the  party  has  disabled  himself  by 
matters  ex  post  facto  from  a  specific  performance,  or  in  cases  where  there  is  na 
adequate  remedy  at  law."  Story's  Eq.  Jur.,  g  790;  see,  also,  Peler  v.  Levy, 
26  N.  J.  Eq.,  360;  Izard  v.  May's  Landing  Power  Co.,  31  id.,  511;  Gumpton 
V.  Gumpton, 47  Mo.,  37.  "We  think  the  doctrine  ou  this  subject  is  now  well- 
settled,  and  may  be  succintly  stated  to  be  this.  Where  the  court  of  chancery 
has  jurisdiction  of  the  case,  and  where  it  is  a  case  proper  for  specific  perform- 
ance, it  may,  as  auxiliary  to  specific  ]x;rformance,  decree  compensation  or 
damages.  And  where  the  ascertainment  of  damages  is  essential  in  order  to  do 
complete  justice  between  the  parties  in  the  case  before  it,  the  court  ought  not 
to  send  the  parties  to  another  forum  to  litigate  their  rights,  but  should  refer 
the  matter  to  one  of  its  own  commissioners,  or  direct  an  issue  quautiun  damni- 
Jkattis  to  be  tried  at  its  own  bar."  Christian,  J.,  Nagle  v.  Newton,  22  Gratt., 
814;  see,  also,  Prothero  v.  Phelps,  35  Eng.  Law  and  Eq.,  528;  .Masson's  App., 
70  Pa.  St.,  26;  Bell  v.  Thompson,  34  Ala.,  633;  Holland  v.  Anderson,  38  Mo.,  , 
55;  Woodman  v.  Freeman,  25  Me.,  531;  American  Laud  Co.  v.  Grady,  38  Ark  , 
550;  Hopkins  v.  Gilm.,  22  Wis  ,  476. 

A7i  action  cannot  be  hroiigJit  in  equity,  solely  for  damages.'\  Where  the  vendee 
files  his  bill  for  a  specific  performance,  knowing  that  the  vendor  has  disabled 
himself  from  ])erformirg,  •'  will  not  be  retained  to  give  him  a  compensation  in 
damages.  Such  an  action  is  matter  strictlj-  of  legal,  and  not  of  equitable  juris- 
diction. Hatch  V.  Co'^b.  .t«. 'm.'&  Ch.,  559;  Kempshall  v.  Stone,  5  id.,  198; 
Morrs  v.  Elmendorf,  11  Paige,  2?7;  Doan  v.  Manzey,  33  111  ,  227;  McQueen  v. 


608        FRF  ox  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

■Chouteau,  20  Mo.,  222;  Heuty  v.  Schroder,  L.  E.,  12  Ch.  D.,  666;  Lewis  v.  Yale, 
4  Fhx.,  437;  Barnctt  v.  ^Meiulenhall,  42  Iowa,  296;  Smith  v.  Kelly,  56  Me  ,  64; 
Frauy  v.  Ortou,  75  111.,  100. 

Where  specific  performance  cannot  be  performed.'\  "The  rule  assumes,  of 
course,  a  sufficient  contract,  performance,  or  an  offer  to  perform,  by  the  plain- 
tiff, and  every  other  element  requisite  on  his  part  to  the  cognizance  of  his  case 
in  chancery ;  and  that  the  special  relief  sought  is  defeated,  not  by  any  defen.se 
or  counter  e(iuities,  but  simply  because  an  order  therefor  would  be  fruitless 
from  the  inability  of  the  defendant  to  comply.  The  jurisdiction  is  fixed  by 
establisiiing  the  equitable  right  of  the  plaintiff.  Relief  must  tlieu  be  given  by 
a  decree  in  the  alternative,  awarding  damages,  unless  the  defendant  should 
secure  the  specific  performance  sought.  In  many  cases  this  would  be  an  effec- 
tive and  proper  course,  insomuch  as  the  defendant,  although  not  having  him- 
self, at  the  time,  the  title  or  capacitj^  requisite  for  such  performance,  might  be 
able  to  procure  it  otherwise.  The  jurisdiction  is  not  lost  when  the  court,  in- 
stead of  such  alternative  decree,  determines  to  proceed  directly  to  an  award 
of  dan)ages  or  compensation.  The  peculiar  province  of  a  court  of  chancery,  is 
to  adopt  its  remedies  to  the  circumstances  of  each  case  as  developed  by  the 
trial.  It  is  acting  within  that  province,  when  it  administers  a  remedy  in  dam- 
ages merely  in  favor  of  a  plaintiff  who  fails  oi"  other  equitable  relief  to  which 
he  is  entitled,  without  fault  on  his  part.  The  diversity  of  practice,  in  this  re- 
spect, and  the  doubt  as  to  the  jurisdiction,  we  think  must  have  arisen  less  from 
the  nature  of  the  relief  to  be  afforded,  than  from  the  character  of  the  means 
for  determining  the  amount  of  compensation  to  be  rendered."  Wells,  J.,  in 
Milkman  v.  Ordway,  106  Mass.,  232;  Wiswall  v.  McGowan,  Hoflf.  Ch.,  125; 
Woodcock  V.  Bennett,  1  Cow.,  71;  Hall  v.  Delaplaine,  5  Wis.,  206;  Holland  v. 
Anderson,  38  Mo.,  55;  Chartier  v.  Marshall,  56  N.  H.,  478;  Hamilton  v.  Ham- 
ilton, 59  Mo.,  232. 


EEFERENCE   OF  TITLE.  609 


CHAPTER  IV. 

OF   REFERENCE   OF   TITLE. 

§  1280.  Where  tlie  vendor  of  land  sues  the  purchaser 
for  a  specific  performance  of  the  contract,  the  defendant 
may,  in  some  cases,  succeed  in  having  the  action  dismissed 
at  the  trial,  on  the  ground  of  a  defect  in  the  plaintiff's  title, 
provided  the  defect  in  title  has  been  prominently  put 
forward  in  the  pleadings  :{a)  but  where  this  is  not  the  case, 
the  defendant  is  entitled  to  have  an  inquiry  directed  as  to 
the  title  of  the  vendor  to  the  lands  in  question.  This  right 
is  derived  from  the  extraordinary  nature  of  the  jurisdiction 
which  the  vendor  seeks  to  put  in  action,  in  consideration  of 
which  the  purchaser  has  a  right,  not  only  to  have  such  a 
title  as  the  vendor  offers  upon  the  abstract  unauthenticated, 
but  the  highest  assurance  upon  the  nature  of  his  title  which 
can  be  acquired  for  him  by  the  production  of  deeds,  the 
directing  of  inquiries,  and  the  sifting  of  the  vendor's  con- 
science. (5)' 

Hence  it  follows  that,  though  the  purchaser  may  admit 
that  he  has  only  one  particular  objection, (c)  or  no  objection 
at  all((rZ)  to  the  title,  he  is  equally  entitled  to  a  general  refer- 
ence as  to  it. 

§  1281.  Still  whenever,  in  a  judgment  decreeing  the 
specific  performance  of  a  contract,  an  inquiry  whether  the 
vendor  can  make  a  good  title  is  directed  in  general  terms,  it 

(a)  Lucas  v.  James,  7  Ha. ,  418.  42.5.  (d)  Jenkins  v.  Hlles.  6  Ves.,  646;  cf.  Fleet- 

(6)  Jenkins  v.  Hiles,  6  Ves.,  646, 653.  wood  v.  Green,  15  Ves.,  594. 

(c)  Lesturgeon  v.  Martin,  3  My.  &  K.,  255. 


1  Part  iierformance  ;  mndee  may  insist  upon.]  Where  the  vendor  cannot  fully 
perform  the  vendee  has  a  right  to  insist  upon  part  performance  with  equitable 
compensation.  Barns  v.  Wood,  L.  R.,  8  Eq.,  421;  Wright  v.  Young,  6  Wis 
137-  Jones  v  Shackelford,  2  Bibb.,  410;  Matthews  v.  Patterson,  2  How.  (Miss.), 
729-  McConnell  v.  Brillhart,  17  111.,  354;  Bass  v.  Gilliland,  5  Ala.,  759 ;  Col- 
lins'v.  Smith,  1  Head  (Tenn.),  251;  Harding  v.  Parshall,  56  111.,  219;  Wilson 
V  Cox  50  Miss.,  133.  The  vendor  contracted  to  sell  land,  to  which  it  was 
afterwards  ascertained  he  had  only  the  ownership  of  an  undiminished  half. 
Held,  in  an  action  to  recover  possession,  or  a  decree  for  the  purchase  money, 
that  the  vendee  might  elect  to  take  the  half  and  pay  one-half  the  purchase 
price  or  that  the  contract  should  be  rescinded,  and  the  vendor  to  receive  back 
the  money  paid  and  compensation  for  improvements,  and,  if  any  waste  had 
been  committed,  damages  should  be  deducted.     Erwin  v.  Myers,  46  Pa.  St.,  96. 

39 


610        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

must  be  understood  to  mean  a  good  title  according  to  the 
terms  of  the  contract :  but  if  the  vendor  wishes  to  prevent 
the  renewal,  under  the  inquiry,  of  objections  waived  before 
the  action,  lie  should  guard  himself  by  establishing  such 
waiver  at  the  trial,  and  taking  care  that  the  judgment 
expressly  recognizes  it :  for  under  a  general  inquiry  as  to 
title  the  court  will  not  enter  into  any  question  of  such 
waiver,  (e) 

§  1282.  However,  where  a  purchaser  allowed  the  vendor' s 
suit  for  specific  performance  to  proceed  to  the  i^oint  of  the 
inquiry  as  to  title,  before  bringing  forward  an  objection 
which  was  patent  on  the  face  of  the  abstract  originally 
delivered,  he  was  not  allowed  his  costs  of  the  inquiry, 
though  the  objection  was  fatal  to  the  title. (e) 

§  1283.  The  right  to  the  reference  is  so  far  that  of  the 
purchaser  that  the  vendor  cannot  except  to  the  title,  so  as 
to  assert  his  own  title  to  be  bad.(/) 

§  1284.  The  purchaser  is  also  entitled  to  a  reference  of 
title  where  he  is  plaintiff  in  an  action  for  specific  perfonn- 
ance ;  but  inasmuch  as  in  this  case  it  is  he,  and  not  the 
vendor,  who  is  calling  on  the  court  to  act,  he  does  so  at  his 
own  risk  ;  and  therefore,  if  he  knows  of  objections  and  asks 
for  a  reference,  and  then  waives  the  objections,  he  will  have 
to  bear  the  costs  of  investigating  the  title,  {g)  And  it  would 
seem  that  the  same  result  must  follow  where  the  effect  of  a 
reference  is  to  show  that  the  vendor  had  at  the  due  time 
disclosed  to  the  purchaser  a  perfect  title.  (7^) 

§  1285.  The  right  to  this  reference  is  not  confined  to 
sales  of  real  estate,  but  extends  to  any  species  of  property 
with  regard  to  which  the  court  may  entertain  an  action  for 
specific  i)erf  ormance,  and  the  nature  of  which  renders  such  an 
inquiry  i)rox)er.  Accordingly,  inquiries  have  been  directed 
into  the  title  of  vendors  to  shares  in  railway  companies,  (z) 
and  in  mining  concerns.  (,/)  The  nature  of  the  inquiry,  of 
course,  varies  according  to  the  nature  of  the  property,  and 
the  essentials  of  a  good  title  to  it. 

§  1280.  But  there  are  necessarily  many  contracts  in 

(e)  Upperton  v.  Nickelson,  L.  R.  6  Ch..  437;  (g)  Bennett  v.  Fowler,  2  Beav.,  303.     Of. 

Curling  v.Austie.  2 Dr.  &Sm.,129;McMurray  Freme  v.  Wright,  4  Mad..  364. 

V.  Spicer,  L.  R.  5  Eq  ,  527.    Cf.  Corless  v.  (ft)  See  Lyle  v.  Earlof  Yarborough,  John., 

Sparling,  I.  R.  8  Eq.,  335.  70. 

(/)  Bradley  v.  Munton,  15  Beav.,  460.  (i)  Shaw  v.  Fisher,  2  De  G.  &  Sm.,  U. 

•^  (j)  Curling  v.  Flight,  2  Ph.,  613. 


REFERENCE   OF   TITLE.  611 

respect  of  wliich  no  sucli  inquiry  is  or  can  be  made.  Where 
the  contract  is  not  for  the  sale  of  any  property,  such  a 
reference  is  of  course  out  of  the  question.  And  so,  too, 
where  a  contract  is  ratlier  in  the  nature  of  a  compromise  of 
disputed  rights  than  of  a  contract  for  sale,  the  court  will 
not  make  the  inquiry.  (A')  In  a  case  where  a  small  piece  of 
land  was  described  as  held  of  certain  commissioners  of 
waste  lands  at  a  rent  of  six  shillings,  it  was  doubted  whether 
a  purchaser  could  call  on  a  vendor  for  the  title  of  the  com- 
missioners. (Z) 

§  1287.  The  court  will  not  direct  an  inquiry  where, 
though  the  contract  be  one  of  sale,  the  vendor  only  sells 
such  interest  as  he  has  :{m)  such  a  contract  is,  of  course, 
perfectly  valid,  but,  being  in  restraint  of  the  purchaser's 
implied  right  to  a  good  title,  it  must  be  made  clear  and 
unambiguous  to  the  x")urchaser.(7i)  A  vendor  may,  of 
course,  stipulate  that  a  purchaser  shall  take  such  title  as  he 
himself  bought  with.(c») 

§  1S88.  Of  such  restrictive  stipulations  there  are  many 
cases  :  thus  where  a  i^urchaser  agreed  to  accept  the  vendor's 
title  without  dispute,  he  was  held  to  be  debarred  from 
taking  an  objection  on  account  of  an  incumbrance  which 
left  the  legal  estate  outstanding.  (_/^)'  So,  again,  where  con- 
ditions of  sale  of  a  free-farm  rent  stated  that  no  evidence 

(k)  Godson  v.  Turner,  15  Beav.,  46.  See,  also,  Anderson  v.  HIggins,  1  Jon.  &  L., 

(I)    Ashton  V.  Wood,  3  Jur.  N.    S.,  1164  718. 

(Stuart,  v.  C).  (o)  Monro  v.  Taylor,  §  Ha.,  51,  71. 

(m)  See  supra,  §  857.  (p)  Duke  t.  Barnett,  2  Coll.,  337;  Wilmot 

(n)  Southby  v.  Hutt,  2  My.  &  Cr.,  207,  212.  v.  Wilkinson,  6  B.  &  C,  506. 

1  Contracts  only  partially  in  restraint  of  trade.]  Such  contracts  are  sometimes 
enforced  in  equity.  Tallis  v.  Tallis,  18  Eng.  Law  and  Eq.,  151 ;  Pierce  v. 
Woodward,  6  Pick.,  206;  Chappell  v.  Brockway,  21  Wend.,  158;  Mott  v. 
Mott,  11  Barb.,  127;  Hoysland  v.  Segar,  28  N.  J.  Eq.,  230;  Dwight  v.  Hamil- 
ton, 113  Mass.,  175;  Roller  v.  Ott,  14  Kan.,  600;  Brown  v.  Rounsevall,  78  111., 
589;  Peltz  v.  Eichele,  63  Mo.,  171;  Oregon  Steam  Nav.  Co.  v.  Windsor,  20 
Wall.,  64;  Noah  v.  Webb,  1  Edw.  Ch.,  603. 

Contracts  to  erect  public  buildings  in  a  given  locality  sustained.  ]  Specific  per- 
formance will  be  decreed  of  a  contract  to  pay  money  toward  the  erection  of 
public  buildings,  provided  the  same  are  erected  at  a  given  locality,  or  are  not 
removed  therefrom.  Carpenter  v.  Mather,  3  Scam.,  374;  State  Treas.  v. 
Cross,  9  Vt.,  289;  Bull  v.  Talcolt,  2  Root,  119;  Comm'rs  of  Canal  Fund  v. 
Perry,  5  Ohio,  56;  Cauldwell  v.  Harrison,  11  Ala.,  755;  University  of  Ver- 
mont V.  Buell,  2  Vt.,  48;  Religious  Society  v.  Stone,  7  Johns.,  112;  McAuley 
V.  Billinger,  20  John.,  89;  Collier  v.  Baptist  Educat.  Society,  8  B.  Mon.,  68; 
Trustees  of  Amherst  Acad.  v.  Cowles,  6  Pick.,  427;  Williams  Col.  v.  Dan- 
forth,  12  Pick.,  541;  George  v.  Harris,  4  N.  H.,  533;  Odineal  v.  Barry,  24 
Miss.,  1;  State  v.  Johnson,  52  Ind.,  197;  contra,  Comm'rs  v.  Jones,  Breese,  237; 
Stilson  V.  Comm'rs  of  Lawrence  Co.,  52  Ind.,  213. 


612        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

should  be  required  of  the  receipt,  or  payment,  or  existence 
of  the  gi'ound-rent,  other  than  that  disclosed  by  a  conveyance 
mentioned,  and  that  no  objection  should  be  taken  to  the 
title  in  consequence  of  the  non-payment  or  non-receipt 
of  the  said  rent,  and  the  purchaser  objected  that  the  rent 
had  not  been  paid  for  twenty  years,  and  so  was  extinguished, 
and  that  there  was  therefore  no  subject-matter  of  the  con- 
tract, and  therefore  no  contract ;  the  court  held  that  the 
purchaser  had  by  the  contract  taken  on  himself  the  chance 
of  being  able  to  substantiate  his  claim  to  the  rent.  ((7) 

§  1289.  The  case  of  Best  v.  Hamand(r)  is  a  remarkable 
instance  of  the  upholding  of  such  a  stipulation.  There,  the 
subject-matter  of  the  contract  being  land  which  the  vendor 
had  bought  from  a  railway  company  as  superfluous  land, 
the  contract  contained  a  stipulation  that  the  purchaser 
should  assume  and  admit  that  everything  (if  anything  were 
necessary)  was  done  and  performed  by  the  company  to 
enable  them  to  sell  and  effectually  convey  the  land  as 
surplus  land,  and  should  not  call  for  or  require  i^roduction 
of  any  evidence  to  that  effect.  The  vendor  all  along  knew 
(as  appeared  from  the  abstract  and  replies  to  requisitions) 
that  the  statutory  offer  of  i)re-emption  had  not  been  made  to 
the  adjoining  owners  ;  but  the  court  of  appeal  neverthless 
held  that  the  purchaser  was  bound  by  the  stipulation  ; — to 
the  extent,  at  any  rate,  that  his  refusal  to  abide  by  the 
stipulation  was  a  breach  of  the  contract  which  disentitled 
him  to  sue  for  the  repayment  of  his  deposit.  Unless  the 
decision  may  be  limited  in  this  way,  it  seems  difficult  to 
reconcile  it  altogether  with  the  principles  laid  down  by  the 
same  court  in  the  almost  contemporaneous  case  of  Re 
Banister(.9)  already  referred  to. 

^  1290.  Where  the  vendor  was  entitled  to  one  undivided 
third  in  a  leasehold  interest  in  certain  collieries,  and  the 
purchaser  to  another  undivided  third  under  the  same  title, 
and  the  contract  was  for  an  assignment  of  the  vendor's  share 
and  not  of  the  land,  and  the  vendor  was  held  not  liable  to 
show  the  lessor's  title. (^) 

§  1291.  The  vendor  may  generally  by  express  stipula- 
tion, as  we  have  seen,  entirely  exclude  any  inquiry  into  his 

(g)  HankB  v.  Palling,  6  El.  &  Bl.,  659;  cf.        (r)  12  Ch.  D.,  1. 
Smith  V.  Harrison,  26  L.  J.  Ch.,  412,  5  W.  R.,       (s)  12  Ch.  D.,  1.31;  supra,  §  1166. 
408.  stated  supra.  §  374.  (0  Phipps  v.  Child,  3  Drew.,  709. 


KEFERENCE   OF   TITLE.  613 

title.  But  lie  will  not  be  allowed  to  fall  back  upon  such  a 
stipulation  in  support  of  a  misleading  condition  of  a  sale  \{u) 
and  where,  the  contract  containing  such  a  stipulation,  the 
purchaser  at  first  under  a  mistake  common  to  both  parties 
accepted  the  title,  but  on  discovering  the  mistake  objected 
to  complete,  it  was  held  that  his  objection  was  not  pre- 
cluded by  the  stipulation.  (71) 

§  1293.  Or  the  vendor  may  take  a  middle  course,  and, 
without  excluding,  may  limit  the  inquiry.  He  may,  for 
instance,  exclude  all  objections  in  respect  of  a  particular 
instrument, (?o)  or  all  objections  to  title  earlier  than  a  certain 
deed,(ic)  or  he  may  sell  merely  an  equitable  and  not  a  legal 
estate.  (?/) 

§  1293.  The  cases  on  the  question  whether  and  how  far 
the  inquiry  into  title  has  been  limited  fall  into  two  cate- 
gories ;  first,  where  the  stipulations  of  the  contract  preclude 
the  purchaser  from  making  requisitions  upon  or  inquiries 
from  the  vendor  as  to  his  title,— which  relieves  the  vendor 
from  the  necessity  of  complying  with  or  answering  any 
such  requisition  or  inquiry,  but  does  not  prevent  the  pur- 
chaser from  showing,  by  any  means  in  his  own  power,  that 
the  vendor's  title  is  defective  ;  and  secondly,  cases  in  which 
the  stipulations  preclude  the  purchaser,  not  only  from 
making  such  requisitions  upon  and  inquiries  from  the 
vendor,  but  from  making  any  inquiry  or  investigation  about 
the  title  anywhere  ;— which  may  quite  validly  be  stipulated, 
and  will  generally,  provided  that  the  stipulation  be  clear, 
altogether  preclude  inquiry  and  investigation  for  every 
purpose.  (2) 

§  1394.  Of  the  first  of  these  categories  an  illustration 
may  be  found  in  the  case  of  Darlington  v.  Hamilton(a) 
where  there  was  a  stipulation  that  the  lessor  s  title  should 
not  be  produced,  and  the  purchaser  discovered  that  the 
lessor  s  title  was  objectionable  by  reason  of  its  being  in- 
volved with  the  title  to  other  property,  so  that  the  pur- 
chaser would  run  the  risk  of  being  ousted  by  reason  of  a 

(w)  Re  Banister,  1'2  Ch.  D.,  131;  cf  Harnett  (?/)  Ashworth  v.  Mou-.isey,  fl  Ex.,  175.    Cf. 

V.    Baker.   L.    R.    20    Eq  ,   5().     Distinguish  Official  Manager  of  Sheerness  Waterworks 

Blenkhorn  v.  Penrose,  -29  W.  R.,  237.  Co.  v.  Poison,  20  Beav.,70,  3  De  G.  F.  &  J., 36. 

(V)  .Jones  V.  Clifford,  3  Ch.  D.,  779.  («)  See  Jones  v.  Clifford,  3  Ch.  D  ,  790 

(w)  Corrall  v.  Cattell,  4  M.  &  VV.,734;  S.  («;  Kay,  550.    See,  too.  Shepherd  v.  Keat- 

C,3  Y.  &  C.  Ex..  413  ley.  1  Cr.  M.  &  R..  117;  GeogheRan  v.  Con- 

\x)  Taylor  v.  Martindale,  1  Y.  &  C.  C.  C,  noUy,  8  Ir.  Ch.  R.,  598,  604. 
€58.    Cf.  per  Mallns.  V.  C,   in  Harnett  v. 
Baker,  L.  R.  20Eq.,53. 


614        FRY  ON  SPECIFIC  PERFUKMANCE  OF  CONTRACTS. 

breach  of  covenant  in  respect  to  other  property ;  and  the 
court  accordingly  refused  specific  performance. 

§  139.1.  On  the  other  hand,  where  the  condition  provided 
that  the  lessors'  title  should  neither  be  produced  nor  in- 
quired into,(^)  and  the  purchaser  offered  a(;ts  of  parliament 
in  evidence  that  the  lessors  (a  public  company),  had  no 
power  to  grant  leases,  tlie  objection  was  held  to  be  pre- 
cluded, (c) 

§  l!396.  But  conditions  restrictive  of  a  purchaser's  com- 
mon law  rights  are,  as  we  have  seen,(rZ)  construed  very 
strictly.  Thus  in  AVaddell  v.  Wolfe,  (e)  where  on  a  sale  of 
leaseholds  held  by  underlease  there  was  a  condition  that  no 
requisition  or  inquiry  should  be  made  respecting  the  title 
of  the  lessor,  or  his  superior  landlord,  or  his  right  to  grant 
the  underlease,  and  the  purchaser,  in  investigating  the  title, 
discovered  for  himself  that  the  lessor  had  no  power  to  grant 
the  underlease,  it  was  held  that  the  purchaser  was  not  pre- 
cluded l)y  the  condition  from  insisting  on  the  objection. 
The  court  appears  to  have  considered  that  the  language  of 
the  condition  pointed  only  to  requisitions  and  inquiries  be- 
tween vendor  and  purchasor ;  so  that  the  case  really  fell 
within  the  principle  of  Darlington  v.  Hamilton.  (/) 

§  129r.  Again,  in  Smith  v.  Robinson, (r/)  the  defendant 
having  in  1877  agreed  to  purchase  freehold  property,  sub- 
ject to  a  condition  that  the  abstract  should  commence  with 
a  deed  dated  in  1867,  and  that  no  earlier  or  other  title 
should  be  required  or  inquired  into  by  the  purchaser, 
there  happened  to  be,  among  the  muniments  handed  to  the 
defendant's  solicitor  for  comparison  with  the  abstract,  a 
deed,  of  the  existence  of  which  the  vendor  was  then  ignor- 
ant, which  threw  grave  doubt  on  the  title  ;  and  it  was  held 
that,  the  objection  having  arisen  not  from  any  requisition 
or  inquiry  by  the  purchaser  but  from  the  vendor  s  own  dis- 
closure, the  condition  did  not  apply. 

§  1298.  Generally,  where  an  estate  is  sold  subject  to 
conditions  of  sale  as  to  title,  the  inquiry  is  whether  a  good 
title  is  made  in  accordance  with  such  conditions.  (7^) 

(b)  See  now   the  Vemlor   and  Purchaser       (e)  L.  R  9  Q.  B.,  515.    Cf.  Musgrave  v.  Mc- 
Act,  1874,  6.  2  (li;  infra.  §  1317.  Cullaph,  U  Ir.  Oh   R.  496. 

(c)  Hume  v.  Bentlev,  5  De  G.  &  Sm..  520.        (/)  Kay,  5f,0;  eupra,  §  1294. 

SprattT.  Jeffery  (10  B.  &  C,  249),  which  is  [(/)  13  Lh.  D.,  14s                       ..,      x*       ■  w 

at  variance  with  the  distinction  above  stated  (A)  See  §§  1281, 1337;  and  consider  Meyrick 

must  now  be  considered  as  overruled.  v.  Laws,  34  Beav.,  58. 

(d)  See  snpra,  §  1153  et  seq. 


REFEEENCE   OF.  TITLE.  615 

§  1299.  Accordingly,  in  the  case  of  Re  Banister(/) 
already  referred  to,  although  the  purchaser  was  relieved 
against  a  misleading  condition,  still,  as  the  conditions  pro- 
fessed on  their  face  to  give  only  a  good  holding  title,  the 
reference  was  confined  to  ascertaining  whether  such  a  title 
could  be  made  out.(y)  So,  again,  where  at  the  time  of  the 
written  contract  (an  open  one),  being  signed,  the  purchaser 
verbally  agreed  to  take  a  limited  title,  and  negotiations 
went  on  for  a  long  time  upon  that  footing,  the  court  at  the 
hearing  limited  the  inquiry  as  to  title  accordingly.  (^')  And 
where  A.  contracted  with  B.  for  a  lease,  B.  knowing  the  pur- 
poses for  which  A.  wanted  the  house,  and  A.  knowing  that 
B.'s  title  was  merely  leasehold,  a  reference  was  directed 
having  regard  to  the  covenants  in  the  lease,  and  the  i)ur- 
poses  for  which  the  premises  were  taken.  (Z) 

§  1300.  Generally,  either  vendor  or  purchaser  has  a 
right  to  have  the  inquiry  in  question — the  one  thing  entitled 
to  an  opportunity  of  perfecting,  and  the  otlier  of  investiga- 
ting the  title.  But  there  may  be,  on  the  part  of  either  of 
them,  a  waiver  of  the  right. 

§  1301.  Thus,  if  the  vendor  states  his  title,  and  conclu- 
sively avers  that  he  can  make  no  other  or  better  title,  and  the 
title  disclosed  is  objected  to  by  the  purchaser,  the  court 
may  decide  without  a  reference  ;(m)  but  if  in  such  a  case 
the  decision  were  in  favor  of  the  vendor,  it  seems  that  the 
purchaser  would  then  be  entitled  to  call  for  a  reference. 

§  1302.  But  it  is  with  regard  to  a  waiver  by  the  pur- 
chaser that  this  question  more  often  arises  :  for  a  j)urchaser 
originally  entitled  to  examine  the  vendor's  title  may  subse- 
quently waive  that  right,  either  expressly  or  by  implication  ; 
and  this  waiver  may  be  either  as  to  the  whole  title  or  limited 
to  j)arts  :{)i)  and  in  case  of  an  express  waiver,  it  may  be 
either  absolute  or  conditional. 

§  1303.  An  admission  of  title  by  a  defendant  in  his 
pleading  is  an  express  waiver,  which  excludes  the  right  to 
a  reference  of  title  :  for  this  purpose  it  is  enough  if  the  de- 

(i)  12  Ch  D.,  131;  supra,  §  1166.  Rose  v.  Calland.  S  Ves.,  ISi;  Omero'l  v. 

Ij)  See  too  Smith  v.  Robinson,  13  Ch.  D.,  HardmaD,5  Ves.,  "'2-,  explained  in  Jenkins 

148.  V.   Hilee,  6  Ves.,  6o4-5.    &ee  too   Austin  v. 

(k)  McMurray  v.  Spicer,  L.  R.  5  Eq.,  528  Martin,  29  Beav.,  .535.         , 

ll)  Wllbraliam  v.  Livesey,  IS  Beav.,  206.  im)  e.  g.  Corless  v.   Sparling,  I.  R    8  Kq., 

For  form  of  reference  where  the  vendor  has  335. 

a  power  of  sale  with  the  consent  of  trus-  (n)  Townley  v.  Bond,  2  Dr.  &  War.,  240 

tees,  see  Graham  v.  Oliver,  3  Beav.,  124.  261. 


616        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

fendant  pleads  belief  that  at  the  time  of  the  contract  the 
plaintiff  had  a  title  ;(o)  or  even  if,  the  plaintiff  having 
pleaded  the  facts  constituting  his  title,  they  are  not  denied 
(specifically  or  by  necessary  implication),  or  stated  to  be 
not  admitted,  in  the  pleading  of  the  defendant. (^) 

§  1304.  But  this  waiver,  where  not  express,  must  be 
clearly  implied  from  the  acts  of  the  purchaser.  "The 
court/'  said  Lord  Eldon,  "will  at  least  take  care  that, 
where  it  is  contended  that  the  defendant  has  waived  his 
right  to  a  reference,  it  shall  be  clear  that  there  was  no  sur- 
prise upon  him,  and  that  there  has  been  a  full  and  fair  rep- 
resentation as  to  the  title  on  the  part  of  the  plaintiff  :"(§') 
and  so  where  the  vendor  relies  on  any  dealings  in  respect  of 
the  abstract  as  a  waiver  of  objections  to  title,  the  contents 
of  the  abstract  must  raise  the  objection  in  question  clearly 
and  explicitly,  and  not  merely  by  inference  or  notice,  (r) 

^  1305.  It  is  often  the  case  that  there  is  only  a  particu- 
lar objection  to  the  title  that  is  of  moment,  and  it  is  then 
frequently  a  question  whether  the  purchaser  has  not  waived 
all  right  to  object  to  it. 

§1306.  The  cases  thus  fall  into  three  classes:  (1) 
those  of  acts  done  by  the  purchaser  after  the  objection  is 
known  to  him,  the  objection  being  in  its  nature  curable ; 

(2)  those  of  similar  acts  where  the  defect  is  incurable,  and 

(3)  those  of  acts  before  the  objection  is  known  to  the  pur- 
chaser. It  is  evident  that  under  the  last  we  may  treat  the 
question  of  a  general  waiver  of  title. 

ij  1307.  (3)  Where  the  defect,  though  known,  is  yet  one 
which  it  is,  or  may  be,  in  the  power  of  the  vendor  to  remedy, 
acts  which  indicate  an  intention  to  complete  may  yet  not 
amount  to  a  waiver,  because  they  may  be  done  in  the  faith 
and  expectation  that  the  remedy  will  be  applied.  And  a 
negotiation  about  the  objection  between  the  parties  after 
the  acts  is,  on  this  i)rinciple,  an  evidence  that  it  was  not 
waived.  (5) 

P  1308.  (2)  But  where  the  defect  is  known  to  the  pur- 
chaser, and  is  in  its  nature  incurable,  there  no  such  ex- 
pectation can  arise,  and  much  slighter  acts  will  operate  as 

(o)  Phipps  V.  Child,  3  Drew.,  709.  (r)  Blacklow  v.  Laws,  2  Ha  ,  40. 

(p)  Ord.  XIX.  r.  17.  (»■)  Calcralt  v.  Roebuck,  1  Ves.  Jun.,  221. 

(5)  In  Jenkins  V.  Hilea,  6  Ves.,  655;  Hay- 
don  V.  Bell,  1  Beav.,  337. 


EEFERENCE   OF  TITLE,  617 

indications  of  an  intention  to  waive  the  objection.  So 
where  an  estate,  sold  a  freehold  and  leaseholds  attached, 
turned  out  to  be  nearly  all  leasehold,  and  this  clearly- 
appeared  as  a  defect  which  could  not  be  cured,  and  the 
purchaser  continued  to  treat,  up  to  and  long  after  the  day 
for  concluding  the  purchase,  on  points  of  title  irrespective 
of  this  objection ;  he  was  held  to  have  waived  it.(^)  So 
where  an  estate  was  subject  as  to  part  to  a  reservation  of 
rights  of  si)orting,  which  appeared  on  the  abstract,  and 
which  the  vendor  could  not  cure,  and  after  the  delivery  of 
the  abstract  the  purchaser  took  possession  ;  he  was  held  to 
have  waived  his  right  to  object  to  the  reservation  in  ques- 
tion. (2^)  And  where  the  invalidity  of  a  fiat  on  which  the 
title  depended  was  known  to  the  purchaser,  his  granting  a 
lease  of  the  property  was  held  a  waiver.  (?))  And,  Avhere  the 
defect  alleged  was  an  erroneous  and  misleading  description 
of  the  situation  of  a  house,  but  the  purchaser  had  proceeded 
to  investigate  the  title  after  this  was  known,  he  was  held  to 
have  waived  all  objection  on  the  score  of  misdescription. (w) 

§  3309.  So  with  regard  to  the  contract  itself— if  the 
defendant  contends  that  it  is  a  nullity,  and,  after  having 
become  aware  of  the  facts  on  which  he  relies  for  this  con- 
tention, has  gone  on  acting  as  though  there  were  a  subsist- 
ing contract,  he  will  be  estopped  from  subsequently  taking 
the  objection,  (x) 

§  1310.  Where,  either  by  the  terms  of  the  original  con- 
tract, or  by  a  subsequent  arrangement,  it  is  agreed  that  the 
purchaser  shall  take  possession  and  shall  be  entitled  to  a 
good  title,  no  waiver  is  worked  by  the  possession,  or  by 
any  acts  which  do  not  go  beyond  the  acts  of  a  person 
entrusted  with  the  possession  and  bound  to  take  care  of  the 
estate.  So  where  a  jDerson  purchased  a  share  in  some  iron 
works  to  which  a  good  title  was  to  be  made  in  about  a  year, 
and  it  appeared  to  be  the  intention  of  both  jDarties  that  the 
purchaser  should  previously  take  possession  and  act  as 
partner,  his  doing  so  was  no  waiver  of  his  right  to  a  good 
title.{y) 

(t)  Fordyce  V.Ford,  4 Bro.  C.  C, 494;  S.  C,  (The  contract  was,  however,  rescinded  on 

6  Yes.,  ti79.  another  ground  ) 

(M)  Burnell  v.  Brown,  IJ.  &  W.,  16S.  (x)  Flint  v.  Woodin,  9  Ha.,  618;  Campbell 

(»)  Ex  paite  Sidebotham,  1  Moiit.  &  Ayr.,  v.  Fleming,  1  A.  &  E.,  40. 

€55;  Ex  parte  Barrington,  2  Mont.  &  Ayr.,  (y)  Stevens  v.  Guppy,  3  Ru39.,  171;  Mar- 

245.  gravine  of  Anspach  v.  Noel,  1  Mad.,  310,  315. 

(w)  Stanton  v.  Tatteraail,  1  Sm.  &  G.,  529. 


618        FRY  ON  SPECIFIC  PERFOKMANCE  OF  CONTRACTS. 

§  1311.  In  Burroughs  v.  Oakley(£:)  the  original  contract 
was  silent  as  to  possession,  but  possession  liaving  been 
taken  by  the  purchaser,  and  both  parties  having  for  more 
than  a  year  subsequently  continued  negotiating  as  to  title, 
Plumer,  M.  R.,  concluded  that  possession  was  prematurely 
taken  with  the  consent  of  both  parties,  but  without  an 
intention  of  waiving  the  investigation  of  title  :  and  so  where 
a  purchaser  took  possession,  with  the  vendor's  leave,  pend- 
ing an  answer  to  a  requisition  as  to  the  tenure  of  the 
property,  he  was  held  to  have  not  thereby  waived  the 
requisition,  (rf) 

§  1313.  (3)  Acts  of  ovvership  on  the  part  of  a  purchaser 
may  amount,  in  the  contemj)lation  of  the  court,  to  a  declara- 
tion that  he  considers  himself  as  the  owner  of  the  property, 
and  then  they  work  an  acceptance  of  title  and  a  waiver  of 
all  objections  ;  or  secondly,  such  acts,  though  falling  short 
of  this,  may  yet,  by  changing  the  property  which  is  subject 
to  the  vendor's  lien,  affect  that  security,  and  therefore 
furnish  a  motive  to  the  court  to  order  the  payment  into 
court  of  the  purchase-money,  (b) 

§  1313.  It  is  obvious  that,  for  acts  to  amount  to  the 
waiver  of  an  objection  before  it  is  known,  they  must  be 
very  strong  and  distinct,  (c) — such  acts,  in  short,  as  are 
equivalent  to  a  declaration  by  the  purchaser  that  he  has 
taken  the  estate  at  all  possible  risks,  and  considers  him- 
self as  the  absolute  and  unconditional  owner  of  it,  and  so 
preclude  any  investigation  of  title  at  all.  Therefore  in  a 
case  where  the  objections  were  not  known,  the  stubbing  up 
of  an  osier-bed  and  tilling  up  a  pond,  though  held  to  justify 
an  order  for  payment  of  the  purchase-money  into  court,  and 
for  a  receiver,  were  not  held  to  amount  to  a  waiver  of 
title.  (rZ) 

^  1314.  Leaving  the  abstract  unobjected  to  for  two 
years,  altering  the  property,  letting  it,  and  apologizing  for 
not  paying  the  purchase-money,  which  was  of  course  only 
payable  if  the  title  w^as  accepted,  have  been  considered 
strong  acts  of  a  waiver,  (e)  And  where  the  purchaser  was 
in  possession  twenty  years,   and,  after  making  frivolous 

(z)  3  Sw.,  159.  (d)  Osborne  v.  Harver,  2  Y.  &  C.  C  C,  116; 

(a)  Turquand  v.  Rhodes,  16  W.  R.,  1074.  Small  v.  Attwood,  You.,  5(i6. 

(6)  Cutler  v.  Simons,  2  Mer.,  103.  («)  Margravine  of  Anspach  v.  Noel,  1  Mad., 

(c)  Dixon  V.  Astley,  1  Mer.,  133.  310. 


REFERENCE   OF  TITLE.  619 

objections  and  refusing  any  further  explanation  of  them, 
still  continued  in  possession,  the  right  to  investigate  title 
was  held  to  have  been  waived.  (/)  The  like  was  held  in  a 
case  where  a  purchaser  continued  twenty-six  years  in 
possession  after  his  requisitions  of  title  were  sent  in,  and 
had  paid  a  considerable  part  of  his  purchase-money,  and 
made  alterations,  (r/)  In  another  case,  Lord  Romilly,  M.  R., 
expressed  an  opinion  that  the  purchaser,  having  retained 
the  abstract  for  five  months  and  made  no  objections  to  the 
title,  but  simply  got  the  vendor  to  verify  the  abstract  with 
title-deeds,  had  thereby  waived  all  objections  as  to  title,  (/i) 
And  where  the  purchasers  of  a  leasehold  interest,  after 
investigating  and  accepting  the  vendor's  title,  delayed  com- 
pletion on  the  ground  that  they  had  since  discovered  an 
ancient  lease,  which  they  suggested  (but  did  not  attempt  to 
prove)  would  override  the  vendor' s  interest ;  they  were  held 
to  have  lost  the  right  to  make  any  inquiry  on  the  subject. (/) 

§  13 1*5.  The  right  of  investigation  may  sometimes  be 
waived  by  the  silence  of  a  subsequent  contract  concerning 
it.  Thus  where,  by  a  contract  for  the  sale  of  an  estate,  the 
purchaser  was  entitled  to  evidence  that  the  buildings  were 
not  on  the  copyhold  part  of  the  property,  which,  except  to 
that  extent,  the  vendor  was  not  to  be  called  on  to  dis- 
tinguish from  the  freehold  ;  the  purchaser  asked  for  evidence 
of  the  identity  of  the  parcels  in  the  abstract  with  the  estate 
sold :  subsequently,  l)y  a  supplemental  contract,  the  pur- 
chaser accepted  the  title,  subject  to  the  production  of  a 
declaration  of  the  identity  of  the  parcels  in  the  deeds  and 
land  sold— which  was  produced  and  approved  on  the 
purchaser's  behalf  :  and  he  subsequently  objected  that  the 
buildings  were  on  the  coj^yhold  part  of  the  estate :  it  was 
held  that  this  term  of  the  original  contract  had  been  waived 
by  the  silence  on  that  head  of  the  supplemental  one.{J) 

§  1310.  On  the  other  hand,  the  mere  acquiescence  of 
both  parties  in  not  enforcing  the  completion  of  the  con- 
tract, (A")  the  continuing  of  a  treaty  and  at  the  same  time 
insisting  on  the  objection, (Z)  and  the  approval  of  the  title 

(/)  Hall  V.  Laver,  3  Y.  &  C.  Ex.,  191.  (i)  Corbett  t.  The  Commissioners  of  Her 

{g)  Wallls  V.  Woodyear,  2  Jur.   N.  S.,  179    Majesty's  Works,  etc.,  16  W.  R.,  889. 
(Wood,  V.  C).    See  too  Bown  v.  Stensou,       {j)  Dawson  v.  Brinckman,  3  De  G.  &  Sm.» 
24  Be.av.,  631.  376;  S.  0.  3  Mac.  &  G.,  53. 

(h)  PcKK  V.  WIsden,  16  Beav.,  239.  (k)  Blachford  v.  Kirkpatrick,  6  Beav.,  232. 

(I)  Knatchbull  y.  Grueber,  1  Mad.,  103. 


620        FKY  ON  SPECIFIC  PERFOKMATs^CE  OF  CONTRACTS. 

by  the  i^urcliaser's  counsel, (w)  liave  all  been  held  sufficient 
to  waive  the  purchaser  s  right  to  investigate  the  title  of  the 
vendor. 

§  1317.  By  the  vendor  and  purchaser  act,  1874,  s.  2  (1) 
it  is  enacted  that  (subject  to  any  stipulation  to  the  contrary 
in  the  contract)  under  a  contract  to  grant  or  assign  a  term  of 
years,  whether  derived  or  to  be  derived  out  of  a  freehold 
or  leasehold  estate,  the  intended  lessee  or  assign  shall  not 
be  entitled  to  call  for  the  title  to  the  freehold.  But  in  cases 
where  the  purchaser  of  a  lease  still  has  the  right  to  inquire 
into  the  title  of  the  lessor,  conduct  may  waive  that  right 
which  does  not  waive  the  right  as  to  the  title  of  the  lessee. 

§  1318.  So  where  B.  contracted  with  A.  to  take  an  as- 
signment of  a  lease  when  executed,  and  inspected  the  lease 
and  the  assignment  of  it  to  A.,  and  subsequently  directed 
A.  to  cause  an  assignment  to  himself  to  be  endorsed  iotldem 
verbis,  he  was  held  to  be  precluded  from  calling  for  the 
lessor's  title. (?i)  Again,  where  a  purchaser,  after  transmis- 
sion to  him  of  the  original  lease,  prepared  a  draft  assign- 
ment, and  made  various  objections  as  to  repairs  and  other 
matters,  but  did  not  require  the  production  of  the  lessor's 
title,  it  seems  that  he  would  have  been  held  to  have  waived 
the  right,  but  the  point  was  not  decided,  (o)  And  in  a  case 
which  came  before  Lord  Cranworth,  he,  affirming  a  decision 
of  Stewart,  V.  C,  held  that  joining  in  a  valuation,  adver- 
tising the  property  to  be  disposed  of,  and  other  like  acts  on 
the  iDart  of  the  lessee,  which  implied  that  nothing  remained 
to  be  done  but  the  execution  of  the  lease,  amounted  to  a 
waiver  of  his  right  to  call  for  the  lessors  title. (^9) 

§  1319.  In  analogy  with  the  distinction  established  by 
the  above  cases  on  conditions  of  sale  as  to  the  lessor's  title, 
it  is  established  that  acts  may  amount  to  a  waiver  of  a  right 
to  investigate  the  title,  and  yet  not  compel  the  purchaser  to 
take  it,  if  it  come  out  collaterally  that  the  vendor  has  no 
title.  Thus  in  Warren  v.  Richardson,  (^)  the  purchaser  of 
a  leasehold  interest  had  done  acts  which  the  court,  at  the 
hearing,  held  to  be  a  waiver  of  the  right  to  investigate  a 

(to)  Deverell  ▼.  Lord  Bolton,  18  Ves.,  505.  665,  which  see  for  the  form  of  a  declaration 

Distinguish  Corbett  t.  The  Commissioners  that  the  right  to  call  for  the  lessor's  title  has 

of  Her  Majesty's  Works,  etc.,  16  W.  R.,  889.  been  waived.    See  also  Ogllvie  v.  Foljambe, 

(n)  smith  v  Capron,  7  Ha.,  185, 189  3  Mer.,  66. 

(o)  Clive  V.  Beaumont,  1  De  G   &  Sm.,  397.  (7)  You.,  1. 

(p)  Simpson  V.  Sadd,  4  De.  G.  M.  &  G., 


KEFEKENCE   OF   TITLE.  621 

title  ;  but  it  appearing  on  the  report  of  the  Master,  to  whom 
it  was  referred  to  settle  the  lease  and  to  state  any  special 
circumstances,  that  the  vendor  held  this  together  with  other 
leasehold  property  under  one  lease,  and  subject  to  one 
proviso  for  re-entry,  so  that  the  vendor,  who  was  plaintiff, 
could  not  make  a  good  title  ;  the  court  refused  to  enforce 
the  completion  of  the  contract  on  the  defendant. 

§  1320.  Where  the  purchaser,  having  discovered  a 
material  defect  in  the  title  in  the  course  of  his  investigation 
of  it,  gave  notice  to  determine  the  contract,  and  immediately 
afterwards  bought  up  the  interest  which  had  constituted 
his  objection,  it  was  held  that,  having  thus  by  his  own 
voluntary  act  cured  the  defect,  he  could  not  avail  himself 
of  this  purchase  for  the  purpose  of  destroying  the  original 
contract;  and  specific  performance  was  decreed  against 
him.(r) 

§  1321.  With  regard  to  the  proper  mode  of  pleading 
that  the  right  to  investigate  the  title  has  been  waived,  it 
was  decided  by  Knight  Bruce  (then  V.  C.)  in  Clive  v.  Beau- 
mont, (5)  that  it  was  not  enough  for  the  party  relying  on 
such  waiver  to  allege  facts  from  which  it  is  a  legal  inference ; 
but  that  he  must  allege  the  facts  and  that  there  had  thereby 
been  such  waiver.  And  this  seems  to  be  the  i-)roper  course 
under  the  present  practice  of  the  high  court,  (i^)' 

§  13S2.  With  regard  to  the  stage  of  the  proceedings  at 
which  the  reference  of  title  may  be  obtained,  it  will  be  con- 
venient briefly  to  refer  to  the  former  practice  of  the  Court 
of  Chancery,  inasmuch  as  the  principles  upon  which  that 
practice  was  based  will  no  doubt  continue  to  be  observed  by 
the  high  court,  so  far  as  they  are  applicable  to  the  present 
procedure. 

§  1323.  The  inquiry  as  to  title  might  be  directed  by  the 
Court  of  Chancery, 

(r)  Murrell  v.  Goodyear,  1  De  G.  F.  &  J.,    Frankum,  2  De  G.  &  Sm.,  561^    Cf.  Hughes, 
432                                                                           V.  Jones,  3  Ue  G.  F.  &  J.,316-^. 
(!s)  1  De  G  &  Sm.,  397.    See  to  Gaston  v.        (t)  Ord.  XIX.  r.,  18.       

1  Waiver  of  tender.^  A  tender  need  not  be  averred  by  the  plaintiff,  wliere  he 
avers  and  proves  that  the  defendant  refused  to  fulfil  the  contract,  and  expressly- 
waived  a  tender.     Martin  v,  Merritt,  57  Ind.,  34. 

Cross  bill  in  sjiecific  lyerformance.^  Where  the  vendor,  by  his  answer  to  the 
action  of  the  vendee,  submit  to  perform,  it  is  competent  for  him,  by  a  cross 
bill  to  compel  the  vendee  to  perform  also.  He  cannot,  however,  after  resist- 
ing performance,  and  where  the  property  has  depreciated  in  value,  compel 
specific  performance  by  the  vendee.     Tobey  v.  Foreman,  79  111.,  489. 


622        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

(1)  At  the  hearing  : 

(2)  On  motion  before  the  hearing  but  after  the  answer : 

(3)  On  motion  before  answer. 

The  practice  of  allowing  this  inquiry  to  be  directed  on 
motion  was  introduced  by  Lord  Thurlow.(?^) 

§  1334.  (1)  Where  an  inquiry  as  to  title  alone  was 
directed  at  the  hearing,  it  was  taken  as  excluding  all  other 
questions  but  that  of  title,  so  that  the  court  would  not,  on 
further  consideration,  enter  into  any  other  question  set  up 
as  a  defense  by  the  answer,  (t^) 

§  1335.  (2)  The  inquiry  might  be  directed  before  the 
hearing  where,  the  defendant  having  answered,  there  was 
no  other  question  on  the  record  but  that  of  title,  or  where, 
there  being  some  other  question,  the  objection  on  that  score 
was  removed  by  consent.  (^) 

§  1336.  Where  other  qu-estions  were  raised,  but  the 
court,  on  looking  into  the  defendant's  answer,  saw  that  they 
were  mereh'  frivolous  and  entirely  uuAvorthy  of  argument, 
it  would  treaty  them  as  no  questions  at  all,  and  direct  the 
inquiry  as  if  they  had  not  been  raised,  (x) 

§  1337.  Unless,  however,  the  other  question  raised  by 
the  answer  were  merely  frivolous,  even  though  the  defend- 
ant's contention  might  be  such  as  the  court  judged  unlikely 
to  succeed,  an  inquiry  before  the  hearing— which  was  in  one 
case  described  by  Leach,  V.  C,  as  "in  its  nature  an 
extraordinary  indulgence  to  the  plaintiff,  out  of  the  common 
course  of  i3roceedings,"(2/) — was  not  granted.  (^) 

§  1338.  Accordingly,  such  references  were  refused  in 
the  following  cases  : — where  there  was  a  claim  for  com- 
pensation, (a)  even  though  the  defendant  submitted  to  com- 
plete his  contract  ;(5)  where  a  purchaser  insisted  on  laches 
as  a  defense  ;(c)  where  there  was  a  question  as  to  the  pro- 
duction of  a  lessor's  title  ;{d)  and  where  there  was  a  ques- 
tion whether  there  was  any  subsisting  contract. (e)  "The 
rule  was  quite  obstinate,"  said  Lord  Eldon  in  the  last-cited 

{«)  1  Sw.,  551  n. ;   Anon.  v.  Skelton,  1  V.  &  Wood,  1  J.  &  W.,  419;  Boyes  v.  Liddell,  1  Y. 

B.,  517;  Eldridge  v.  Porter,  14  Ves.,    139;  &  C.  C.  C,  133;  Wood  v.  Machu.  5  Ha.,  158. 
Cons.  Ord.  XX.    See  also  Briscoe  v.  Brett,  2       (y)  Gordon  v.  Ball,  1  S.  &  S.,  180. 
V  &B    377  (s)  Withy  V.  Cottle,  IS.  &S.,174;  Gordon 

(V)  Le  Grand  v.  Whitehead,  1  Russ.,  309;  v.  Ball,  IS    &  S.,  173;  Portman  v.  Mill,  2 

cf.  Hor»d  V  Oglander,  34  Beav.,  513.  Russ.,  570. 

(?u)  Blyth  V.  Elmhirst,  1  V.  &  B.  1;  Paton       (a)  Paton  v.  Rogers,  1  \  .  &  B.,  351. 
V.  Rogers,  1  V.  &  B.  351;  Moss  v.  Matthews.       (6)  Lowe  v.  Manners,  1  Mer.,  19. 
3  Ves..  -279;  Wright  v.  Bond,  11  Ves.,  39.  (c)  Blyth  v.  Elmhirst,  1  V.  &  B.,  1. 

(X)  Withy  V.  Cottle,  T.  &  R.,  78;  Boehm  v.       (d)  Gompertz  v.  Anon,  12  Vea.,  17. 

(e)  Morgan  v.  Shaw,  2  Mer.,  138. 


REFERENCE   OF   TITLE.  623 

case,  "that  a  reference  of  title  cannot  be  had  except  in  a 
case  where  there  is  no  question  but  of  title  ;  and  this  must 
be  the  rule  ;  for  otherwise,  we  should  fall  into  the  absurdity 
of  having  the  master's  report  upon  a  title,  and  a  subsequent 
decision  that  there  is  no  subsisting  agreement." (/) 

§  1 329.  By  questions  of  title  are  meant  those  which  can 
only  become  properly  the  subject  of  adjudication  upon  the 
investigation  of  the  title,  although  they  may  not  arise  on 
the  abstract  taken  by  itself;  so  that  where,  the  validity  of 
the  conditions  of  sale  being  admitted,  the  question  was  as 
to  the  application  of  them,  the  question  was  held  to  be  one 
of  title.  (.17) 

§  1330.  AVhere  the  circumstances  were  such  as,  on  the 
principle  already  stated,  to  justify  this  inquiry  on  motion, 
the  Court  of  Chancery  would  make  it  on  such  an  applica- 
tion, even  though  the  question  in  dispute  might  be  one 
which  could  be  conveniently  disposed  of  at  the  hearing 
without  a  reference,  (7/) 

§  1331.  In  one  case,  where  the  defendants  by  their  an- 
swer set  up  inability  on  the  part  of  the  plaintiff  to  make  a 
title,  and  further  that  he  has  not  done  so  within  a  period 
specified  by-the  contract  for  that  purpose,  and  had  also  de- 
livered a  notice  to  rescind  the  contract.  Turner  and  Knight 
Bruce,  L.  J.  J.,  affirming  the  decision  of  Stewart,  Y.  C, 
held  that  the  defendants  were  not  entitled  to  move,  before 
the  hearing,  for  a  reference  as  to  title  according  to  the  con- 
tract, and  when  first  shown,  without  prejudice  to  any  ques- 
tion in  the  cause.  Turner,  L.  J.,  expressed  a  doubf  whether 
defendants  could  ever  so  move  successfully.  (/) 

§  1332.  (3)  An  inquiry  as  to  title  might  also  be  made  on 
motion  before  answer,  where  the  vendor,  being  plaintiff, 
undertook  to  do  all  such  acts  for  the  purpose  of  executing 
what  the  court  should  \liink  right,  as  if  the  answer  had 
been  put  ui,U)  and  it  being  admitted  at  the  bar  that  there 
was  no  other  question  than  that  of  title.  (A-)  Where  such 
an  admission  was  not  made,  the  motion  was  refused.  (Z) 
Nevertheless  in  one  case  Shadwell,  V.  C,  held  that,  after 
such  a  reference,  the  defendant  might  by  his  answer,  which 

(/)  2Mer.,  140.  Mining  Co.,  Limited,  3  De  G.  J.  &  S.,  593, 

(g)  Machu,  5  Ha.,  158, 161.  595. 

(A)  Curling  v.  Flight,  5  Ha.,  248.  (/)  Balmanno  v.  Lumley,  1  V.  &.  B.  224. 

(i)  Reed  v.  Don  Pedro  North  Del  Key  Gold       («)  See  per  Lord  Eldon  in  1  Mer.,  372. 

(I)   Matthews  v.  Dana,  3  Mer.,  470. 


624        FRY  ON  SPECIFIC  PEKFOKMANCE  OF  CONTRACTS. 

was  called  for  by  the  plaintiff,  make  any  defense  he  pleased, 
and  was  not  confined  to  the  question  of  title. (??^)  "It  does 
not  appear,"  said  the  Vice  Chancellor,  "  on  the  face  of  the 
order  of  reference,  that  the  defendant  did  not  object  to  the 
order  being  made,  or  that  he  said  that  there  was  no  objec- 
tion as  to  title.  "(;i)  It  would  seem  from  this  that  the  order 
should  have  been  prefaced  with  such  a  declaration. 

§  133^1.  In  the  case  of  Phillipson  v.  Gibbon,  (o)  the  pro- 
priety of  the  vendor  taking  the  earliest  possible  opportunity 
of  obtaining  the  reference,  where  only  title  is  in  question, 
w^as  plainly  intimated  by  James,  L.  J.  "In  almost  every 
case,"  said  his  Lordship,  "  It  is  the  duty  of  a  vendor,  where 
there  is  no  question  but  that  of  title  between  him  and  the 
purchaser,  to  avail  himself  of  the  opportunity  of  having  an 
immediate  reference  as  to  title  and  so  saving  a  multiiilica- 
tion  of  unnecessary  costs. (^:>) 

§  1334.  The  inquiry  as  to  title  is  now,  it  is  conceived, 
obtainable  either  under  Ord.  XXXIII.,  which  provides  that 
"the  court  or  a  judge  may,  at  any  stage($')  of  the  proceed- 
ings in  a  cause  or  matter,  direct  any  necessary  inquiries  or 
accounts  to  be  taken,  notwithstanding  that  it  may  appear 
that  there  is  some  special  or  further  relief  sought  for,  or 
some  special  issue  to  be  tried,  as  to  which  it  may  be  proper 
that  the  cause  or  matter  should  proceed  in  the  ordinary 
manner ;' '  (r)  or,  in  an  appropriate  case,  under  the  eleventh 
rule  of  Order  XL.,  ]providing  that  "any  party  to  an  action 
may,  at  any  stage  thereof,  ajDply  to  the  court  or  a  judge  for 
such  order  as  he  may,  uj)on  any  admission(5)  of  facts  in  the 
pleadings,  be  entitled  to,  without  waiting  for  the  determi- 
nation of  any  other  question  between  the  parties,  -s^-  *  * 
Any  such  application  may  be  made  by  motion,  so  soon  as 
the  right  of  the  party  applying  to  the  relief  claimed  has 
appeared  from  the  iDleadings.  The  court  or  a  judge  may, 
on  any  such  ax)plication,  give  such  relief,  subject  to  such 
terms,  if  any,  as  such  court  or  judge  may  think  fit."(^) 

§  1335.  The  order  for  reference  is  not  strictly  confined 
to  an  inquiry  whether  a  good  title  can  be  made,  but  may 

(m)  Emery  v.  Pickering,  13  Sim.,  583.  {r)  Compare    Consol.   Ord.  XX.,  and  see 

(n)  13  Sim.,  584.  Ord.  I.  r.  3;  also  Ord.  XXXVI.  r.  6. 

(o)  L.  R.,  6  Ch.,  423.  (s)  .^ee  Symonds  v.  Jenkins,  24  W.  R.,  513. 

(p)  L.  R.  6  Ch.,  435.  (t)  The  Judge  of  first  instance  has  a  discre- 

Iq)  For  form  of  judgment  where  the  inquiry  tion  as  to  making  or  refusing  an  order  under 

is  directed,  see  Seaton,  1287.  this  rule.    Mellor  v.  Sldebottom,  5  Ch.  D., 

343  (C.  A.) 


KEFERENCE   OF   TITLE.  625 

extend  to  everything  that  appears  to  be  connected  with 
the  title,  (w)  It  should  therefore  include  an  inquiry  as  to 
the  time  at  which  a  good  title  was  shown, («)  unless  for  some 
reason  stated  at  the  time — e.  g.,  that  the  contract  itself,  (20) 
or  the  plaintiff's  right  to  specific  performance, (a?)  has  been 
disputed— and  by  the  exiDress  direction  of  the  court,  this 
inquiry  was  omitted.  (?/)  As  this  inquiry,  if  to  be  made  at 
all,  should  be  directed  at  the  original  reference,  the  court 
has  refused  to  direct  it  subsequently  on  a  second  motion.  (2;) 

§  1336.  On  the  same  principle,  the  inquiry  may  extend  to 
whether  it  appeared  by  the  abstract  that  a  good  title  could 
be  made  :(a)  and  on  the  like  ground,  an  inquiry  was  in  one 
case  added  whether  the  defendant  objected  at  any  time  to 
the  want  of  evidence  as  to  the  identity  of  the  premises  ;  but 
an  inquiry  whether  the  abstract  was  perfect,  and  if  deficient, 
in  what  respects,  and  whether  it  was  ever  perfected,  was 
considered  to  be  not  so  connected  with  the  title  as  to  be 
added  to  the  reference.  (5) 

§  1337.  The  inquiry  may  be  limited  in  any  manner 
appropriate  to  the  circumstances  of  the  particular  case,  as, 
for  instance,  by  directing  that  regard  is  to  be  had  to,  or  that 
the  inquiry  is  to  be  made  subject  to,  specified  requisitions 
or  declarations. (c) 

§  1338.  In  Harnett  v.  Baker, (rZ)  the  court  (Malins,  V. 
C),  having  come  to  the  conclusion  that  a  condition  of  sale 
restrictive  of  the  title  was  not  binding  on  the  jDurchaser,  on 
the  ground  that  it  was  founded  on  an  erroneous  statement 
of  facts  which  the  vendor  was  bound  to  know  was  erroneous, 
held  that  the  vendor  (plaintiff")  must  either  take  an  open 
reference  of  this  title  (which  he  refused),  or  have  his  bill 
dismissed  with  costs. 

§  1339.  The  inquiry  is  whether  the  vendor  can  make  a 
good  title,  not  whether  he  could  do  so  at  the  date  of  the 
contract ;  and  therefore,  when  one  of  the  inquiry  has  been 

(M)  Jennings  v.  Hopton,  1  Mad.,  211;  Ben-  practice  on  this  point  was  somewhat  vari- 

nettv.  Rees,  1   Ke.,  4u8;  Enraght  v.  Fitzger-  able.    Moss  v.  Matthews,;?  Ves,  279;  Gibson 

aid,  '2  Dr.   &   War.,  43.    See  too  Gedye  v.  Clarke,  2  V.  &  B.,  108 
Commissioners  of  Public  Works,  16  W.  R.       (z)  Hyde  v.  Wroughton,  3  Mad.,  279. 
1106.  (a)  Wright  V.  Bond,  U  Ves.,  39;  Horniblow 

(V)  Seton,  1297, 1303.    See  Foxlowe  v.  Am-  v.  Shirley,  Seaton,  129&*;  Jennings  v.  Hopton, 

coats,  3  Beav.,  496.  1  Mad.,  211. 

(w)  Gibbons  v.  North-Eastern  Metropolitan       (b)  Bennett  v.  Rees,  1  Ke.,  405,  40S-9. 
Asylum  District,  11  Beav.,  1;  Morris  v.  WIl-       (o)  Saul  v.  Bolton,  Seton,  1297;  Remnant  v. 

son,  5  Jur.  N.  S.,  168.  Holt,  Id.,  1298;  Hume  v  Pocock,  L.  R.  1  Eq., 

(X)  Potter  V.  Crossley,  5  W.  R..  33.  423,  431, 1  Ch  ,  377;  and  supra,  §§  1298,  2299. 

(y)  Bennett  v.  Rees,  1  Ke.,  409      The  old       {d)  L.  R.  20  Eq.,  50,  58. 

40 


626        FKY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

directed,  (c)  he  may  make  out  his  title  at  any  time  before 
the  certificate,  and  if  he  can  do  so  he  will  be  entitled  to  a 
judgment  or  order  in  his  favor, (/)  at  least  where  there  has 
been  no  unreasonable  delay,  and  time  is  not  material. ((7) 

§  1340.  The  Court  of  Chancery  often  allowed  time  for 
the  completion  of  the  title :  in  an  old  case  it  more  than 
once  allowed  the  vendor  time  to  get  an  act  of  Parliament  ;(7i) 
and  where  upon  the  face  of  the  contract  it  appeared  that 
there  was  a  difficulty  in  the  plaintiff's  title,  Lord  Hatherley 
(then  Wood,  Y.  C.,)  refused  on  demurrer  to  stop  a  suit  for 
specific  performance,  on  the  ground  that  the  act  of  Parlia- 
ment contemplated  had  not  been  obtained. (/)  So,  in 
another  case,  the  court  allowed  the  vendor  time  to  procure 
a  small  part  of  the  estate  ^{J)  and,  in  another  case,  allowed 
a  limited  time  to  procure  the  concurrence  of  an  assignee  in 
insolvency.  {7c) 

§  1341.  The  court  grants  indulgence  in  point  of  time  for 
getting  over  any  difficulties  in  matters  of  conveyance,  as 
much  where  the  vendor  is  the  plaintiff,  as  where  the  pro- 
ceedings are  instituted  by  the  purchaser.  (^) 

§  1343.  But  this  indulgence  will  not  be  granted  where 
the  defect  to  be  remedied  was  known  to  the  vendor  or  his 
agent,  and  was  concealed  from  the  x^urchaser  -,{771)  nor  where 
there  has  been  great  delay,  and  there  is  no  probable  chance 
of  the  difficulty  being  got  over  in  a  short  time  ;{%)  so  that  a 
purchaser  under  the  court  would  be  discharged  if  it  appeared 
requisite  to  his  title  that  an  account  should  first  be  taken 
in  an  action  to  be  instituted,  (0)  or  that  an  action  should  be 
instituted  to  try  whether  certain  devisees  were  trustees  for 
the  seller  or  not.  {p) 

§  1343.  Nor  will  the  court  grant  additional  time  where 
the  vendor  j)roposes,  not  to  cure  a  defect  in  the  title  which 
he  had  at  the  sale,  or  to  produce  fresh  evidence  in  support 
of  it,  but  to  get  an  entirely  new  title  :  for  the  court  will  not 

(e)  Questions  as  to  time  and  delay  may,  it  (i)  Devenlsh  v.  Brown,  26  L.  J.  Ch.  23. 

is  conceived,  be  properly  raised  on  the  ap-  (j)  Chamberlain  v.  Lee,  10  Sim.,  444. 

plication  lor  the  inquiry.  (k)  Sidebotham  v.  Barrington,  4  Beav.  110. 

(/)  Bennet  College  v.  Carey,  3  Bro.  C.  C,  See  too  on  this  point.  Re  Banister,  12  Ch.  D., 

390;  per  Lord  Eldon  in  Jenkins  v.  Hiles,  6  145. 

Ves.,  e.'i.'j,  and  In  Seton  v.  Slade,  7  Ves.,  279;  (0  Duke  of  Beaufort  v.  Glynn,  3  Sm.  &.  G., 

Wynn  v.  Morgan,  7  Ves.,  292,  315;  Vancou-  213 

ver  V.  Bliss,  11  Ves.,  4.58  (m)  Dalby  v.  Pullen,  3  Sim.,  29;  S.  C.  1  R. 

(</)  Langford  v.  Pitt,  2  P.  Wms.,  629.  &  My..  296. 

(h)  Lord  Stourton   v.  Meers,    cited   2  P.  (n)  Fraser  v.  Wood,  8  Beav.,  339. 

Wms.,  630.    See  also  Lord  Braybroke  v.  Ins-  (o)  Magennis  v.  Fallon,  2  Moll.,  561. 

kip,  8  Ves.,  417,436;  Coffin  V.  Cooper,  14  Ves.,  (]>)  Noel  v.  Hoy,  St.  Leon.  \  end.,  293. 
205. 


EEFERENCE    OF   TITLE.  627 

force  a  buyer  to  take  an  estate  froin  a  vendor  who  is  neither 
owner  of  it,  nor  possessed  of  the  power  by  the  ordinary 
course  of  legal  proceedings  to  make  himself  so  ;{q)  for  it  is 
not  the  purpose  of  the  court  to  enable  one  man  to  sell 
another  man's  estate. (r)  As  to  this  point,  it  was  in  one 
case  decided  that  a  title  from  possession  defeasible  by  the 
crown  on  account  of  the  alienage  of  the  original  owner, 
cured  by  a  grant  from  the  crown  Avhilst  the  question  was  in 
the  master's  office,  was  the  same  title,  and  the  purchaser 
was  compelled  to  take  it.{s)  And  the  fact  that  the  vendor 
may  have  had  no  title  to  a  small  part  of  the  estate  at  the 
time  of  sale,  and  subsequently  i^urchases  it,  will  not  make 
the  title  a  new  one  within  this  rule.(^^) 

§  1344.  But  even  where  the  vendor  has  no  title  at  all  at 
the  time  of  sale,  so  that  the  purchaser  may  withdraw  if  he 
choose,  yet,  if  he  acquiesce  in  steps  taken  by  the  vendor  to 
get  in  the  estate,  he  will  thereby  have  waived  the  want  of 
mutuality,  and  be  bound  to  accei^t  the  title,  if  made  out  at 
the  trial  or  other  necessary  time.{u) 

§  1345.  The  inquiry  as  to  title  takes  place  in  the  cham- 
bers of  the  judge,  and  the  result  is  embodied  in  a  certificate 
of  his  chief  clerk,  which,  when  approved  by  the  judge,  is 
signed  by  him,  and  filed  in  the  central  office  of  the  court.  (?)) 

§  1346.  Evidence  by  affidavit  of  matters  of  fact  material 
to  the  title  is  admissible  under  a  reference  of  title,  (-w) 
Accordingly  where,  under  such  a  reference,  after  the  con- 
veyancing counsel  had  given  his  opinion  in  favor  of  the 
title,  but  before  the  certificate  had  been  actually  signed,  a 
very  serious  defect  of  title,  not  in  any  way  disclosed  or 
raised  by  the  abstract,  was  discovered  by  the  jmrcliaser's 
insj)ecting  the  property,  evidence  of  the  matters  so  dis- 
covered was  admitted. (.t) 

§  1347.  Whatever  can  be  done  in  chambers  upon  a 
reference  as  to  title  under  a  judgment  where  the  contract  is 
established,  can  be  done  upon  jDroceedings  under  the  ninth 
section  of  the  vendor  and  purchaser  act,    1874,    already 

(q)  Tendringv.  London,  2  Eq    Cas.  Abr.,  (v)  Dart,   Vend.  (5th  eu.),  1099;  Ord.  LXa. 

680,  pi.  9;  Magennis  v.  Fallon,  -2  Moll.,  561.  As  to  objecting:  to  the  certificate  before  it  is 

(r)  Chamberlain  v.  Lee,  10  Sim..  444.  signed  by  the  Judge,  see  Parr  v.  Lovegrove, 

(s)  Eyaton  v.  Simmons,  1  Y.  &  C.  C.  C,  608.  4  Drew.,  17';. 

It)  Chamberlain  v.  Lee,  10  Sim.,  444.  (,w)  Re  Burroughs,  Lynn  and  Sexton,  5  Ch. 

(M)  Hoggart  V.  Scott,  1  R.  &  My.,  293;  Sails-  D.,  603. 

bury  V.  Hatcher,  2  Y.  &  C.  C.  C,  54.    see  (a;)  Phillipson  v.  Gibbon,  L.  R.  6  Ch.,  428. 
supra,  §§  447,  448,  and  Murrell  v.  Goodyear, 
1  De  G.  F.  &  S.,  433. 


628        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

referred  to.{y)  That  act  enables  the  luirties  in  such  cases 
to  dispense  with  the  formal  pleadings  of  an  action,  and  at 
once  to  put  themselves  in  chambers  in  exactly  the  same 
position  in  which  they  would  have  been,  and  with  all  the 
rights  which  they  would  have  had,  under  the  old  form  of 
decree,  (z) 

§  1348.  The  certificate  should,  it  seems,  be  on  the  fact 
of  title  aye  or  no  :  and  accordingly  it  is  improper  to  certify 
that  a  defendant  with  the  concurrence  of  a  third  party 
could  make  a  good  title,  (a)  or  that  he  could  do  so  subject  to 
the  performance  of  certain  conditions  ;(6)  but  where  the 
certificate  is  against  the  title,  it  should  state  the  precise 
points  in  which  it  is  defective,  (c) 

§  1349.  If  any  party  is  dissatisfied  with  the  certificate 
as  filed,  he  must  apply  (by  summons  or  motion)  to  dis- 
charge or  vary  it  within  eight  clear  days  from  the  filing ; 
otherwise,  at  the  expiration  of  that  time  it  becomes  binding 
on  all  the  parties  to  the  proceedings,  and  will  not  after- 
wards be  opened  except  upon  special  grounds.  (cZ) 

§  13oO.  If  the  certificate  is  in  favor  of  the  title,  and 
either  no  application  to  discharge  or  vary  it  is  made,  or 
such  application  fails,  specific  performance  will  generally 
be  ordered  at  the  hearing  (original  or  on  further  considera- 
tion, according  to  the  stage  at  which  the  reference  was 
directed),  of  the  action,  (e)  After  such  an  application  has 
failed,  it  seems  that  no  other  objection  to  the  title  can  be 
made.  (/) 

Under  the^old  practice,  where  the  report  was  in  favor  of 
the  title,  but  the  court  thought  it  too  doubtful  to  force  on 
a  purchaser,  the  court  might  dismiss  the  bill  without  allow- 
ing the  exceptions,  (p')iand  either  with(7i)  or  without(/)  costs, 
as  the  court  might  think  right. 

§  1351.  Where  the  court  varies  a  certificate  in  favor  of 
the  title, (,y)  or  refuses  to  vary  one  against  it,{Jc)  and  the  ven- 

(y)  Supra,  §  1106.  <f)  Brooke  v.  Anon.,  4  Mad.,  212.    As  to 

(z)  Re  Burroughs,  Lynn  and  Sexton,  5  Oh.  the  eflfect  of  a  direction  that  the  vendor  shall 

D.,  604.  convey,  see  Minton  v.  Kirwood,  L.  R.  3  Ch., 

(o)  Lewis  V.  Loxam,  1  Mer.,  179.  617. 

(6)  Magennis  v.  Fallon,  2  Moll.,  561,575,  (g)  Bickner  v.  Milner,  1  Ha.,  578  n. 

583.    See  too  Eadaile  v.  Stephenson,  6  Mad.,  (h)  S.  C.                              Js^  ■ 

3C6  (i)  Wilson  v.  Bellairs,  T.  &  R.,  491. 

(c)  Green  v.  Monks,  2  Moll.,  325.  (j)  Egerton  v.  Jones,  1  R.  4&  My.,  694. 

(d)  Howell  V.  Kightley,  8  De  G.  M.  &  G.,  {k)  Consider  Brewster  v.  Woodall,  (Hall, 
325.  v.  C,  22nd.July,  1S78),  cited  Seton,  1299. 

(«)  See  Dart,  Vend.  (15th  ed.),  1109.    Con-  ^ 

aider  Jeudwine  v.  Aicock,  1  Mad.,  597.  [  .—.k^tiL— 


EEFERENCE   OF   TITLE.  629 

■  dor  desires  to  have  an  opportunity  of  making  out  a  better 
title,  the  certificate  is  generally,  upon  the  hearing  of  the 
application  to  vary,  referred  back  to  chambers  for  review  ;{l) 
and  the  vendor  will  be  allowed  a  reasonable  time  within 
which  to  remove  the  objection,  (m)  On  the  other  hand, 
when  the  matter  has  gone  back  to  chambers,  and  a  new 
abstract  of  title  has  been  delivered,  further  objections  may 
be  brought  m.{7i) 

§  ]  S5*i.  The  Court  of  Chancery  referred  back  the  ques- 
tion of  title  where  the  master  (now  represented  by  the  chief 
clerk)  was  satisfied  with  evidence  of  a  fact  with  which  the 
€ourt  was  not  satisfied,  the  vendor  offering  to  produce 
further  evidence  ;(o)  also  where,  by  expressing  an  opinion 
in  favor  of  some  part  of  the  title,  the  master  had  j)revented 
the  vendor  from  showing  that  the  title  was  good,  even  sup- 
posing that  part  not  to  be  so.(^) 

When  the  report  (now  the  certificate),  was  against  the 
title,  and  the  defect  was  cured  at  the  hearing  on  further  di- 
rections, the  Court  of  Chancery  compelled  specific  perform- 
ance, (§')  without  giving  time  for  further  proceedings:  but 
if  there  was  a  question  whether  the  defect  was  in  part 
cured,  the  court  would  refer  it  back  to  the  master  to  review 
his  report  with  the  additional  circumstances. (r.) 

§  1353.  In  a  case  where  the  certificate  was  against  the 
title,  but  it  appeared  that,  since  the  contract,  the  purchaser 
had  by  his  own  act  acquired  the  means  of  curing  the  de- 
fect, the  court  refused  to  dismiss  the  vendor's  bill. (5) 

§  1354.  But,  generally,  if  the  certificate  is  against  the 
title,  and  either  no  application  is  made  to  discharge  or  vary 
it,  or  such  application  fails,  the  action  will  be  dismissed. (^) 

§  1355.  In  one  case,  where  the  vendor  was  plaintiff  and 
a  deposit  had  been  paid,  the  vendor  was  ordered  to  repay  it 
with  interest  at  four  per  cent,  and  it  was  declared  that  the 
purchaser  was  entitled  to  a  lien  on  the  estate  for  the  deposit 
and  interest,  and  also  for  his  costs  of  the  action,  with  liberty 

(I)  Curling  v.  Flight,  3  Ph.,  616,  619.    Cf.  (q)  Paton  v  Rogers,  6  Mad.. '256 

Ehodes  v.  Ibbetson,  4  De  G.  M.  &  G  .  787.  (r)  Esdalle  v.  Stephenson,  6  Mid  ,  366. 

(m)  Portman  v.  Mill,  1  K.  &  Mv.,  696.  {s)  Hume  v.   Pocock,  L.  R.  1  Eq.,  6«2;  cf. 

(»)  See  Brooke  v.  Anon  ,  4  Mad  ,  -IVi.  Miirrell  v.  Goodyear,  1  De  G.  F.  &  J.,  432. 

(o)   Andrew  V.  Andrew,  3  Sim.,  390.  {t)  See  Dart,  Vend.  (5th  ed.).  1111  ;  Pretty 

(p)  Egerton  V    Jones,  3  .Sim..  392;  S.  C.  1  v.  Solly,  26  Beav.,  613.    Distinguish  Gedye  v. 

R  &  My  ,694;  Portman  v.  Mill.  1  R.  &  My.,  Commissioners  of  Public  Works,  16  W.  R., 

696;  Flldes  V.  Hooker,  2  Mer.,  424.    See  also  1106. 
Jeudwine  v.  Alcock,  1  Mad  ,  597. 


630        FKi   UN  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

to  api>ly  at  chambers  to  give  effect  to  the  lien,  and  there- 
upon the  bill  was  dismissed,  with  costs.  (?^) 

§  1356.  As  an  ordinary  rule,  costs  are  given  not  to,  but 
against,  a  vendor  up  to  the  time  at  which  he  has  lirst  shown 
a  good  title. («)'  But  there  is  also  another  general  rule,  that 
if  a  purchaser  has  taken  certain  objections  to  the  title  of  the 
vendor,  and  those  objections  wliicli  have  been  the  cause  of 
the  litigation  are  overruled,  the  vendor  will  be  entitled  to 
his  costs,  and  the  purchaser  will  not  escape  paying  them  by 
reason  of  some  evidence,  the  want  of  which  was  never  the 
subject-matter  of  dispute  between  them,  not  having  been 
supplied  until  the  title  was  investigated  in  chambers.  (20) 

And  where  a  defendant  prevented  the  plaintiffs  (vendors) 
from  obtaining  the  usual  reference  as  to  title  on  interlocu- 
tory motion  by  setting  up  defenses  wdiicli,  at  the  hearing, 
he  failed  to  establish,  he  was  ordered  to  pay  the  plaintiffs^ 
costs  up  to  and  inclusive  of  the  hearing,  (ic) 

§  1357.  In  the  inquiry  as  to  the  time  when  a  good  title 
was  shown  is  involved  the  question,  what  is  showing  a  good 
title. (2/)  In  relation  to  this,  two  distinctions  are  to  be  borne 
in  mind,  the  one  between  questions  of  title  and  of  convey- 
ance, the  other  between  questions  of  title  and  of  evidence. 

§  1358.  As  to  the  first,  the  rule  was  thus  stated  by  Lord 
Eldon  in  Lord  Bray  broke  v.  Inskip  :{z)  ''As  to  the  question 
whether  the  abstract  was  complete,  the  abstract  is  complete 
whenever  it  appears  that,  upon  certain  acts  done,  the  legal 
and  equitable  estates  will  be  in  the  purchaser.  That  may 
be  long  before  the  title  can  be  completed."  So  that  a  good 
title  is  shown  when  it  appears  from  the  abstract  that  the 
vendor  has  the  whole  equity,  and  in  what  persons  the  out- 
standing portion  of  the  legal  estate  is  vested. («)  The  acts 
to  be  done,  of  which  Lord  Eldon  speaks,  must  be  confined 

(u)  Turner  v.  Marriott.  L.  K.  ?,  Eq..  744.  (v)  See  §§  1281, 136-2. 

[v)  Phillipson  v  Gibbon,  L    K    6  Cti.,  434.  (s)  8  Ves  ,  436. 

{w)S  c;,434.    Cf.  Bridges  v.  l-oiigman,  24  (a)  Avarne  v  Browne,  14  Sim.,3(i3;  Cam- 

Beav.,  27.  herwell  and  South   London  Building  Society 

(a;)  Hyde  v.  Dallaway,  4  Beav.,  606.  v.  HoUoway,  13  Ch.  D.,  7o4,  763. 

1  Demand  as  Mving  relation  to  the  question  of  costs.']  Where  a  party  is  entitled 
to  a  conveyance  on  request,  he  may  commence  an  action  for  specific  perform- 
ance -without  previous  request.  Proof  of  previous  demand  in  equity  is  only 
important  in  reference  to  costs.  The  party  liable  to  perform  is  put  in  the 
wrong,  where  there  is  a  demand  and  refusal,  and  is  chargeable  with  costs- 
Bruce  V.  Tilson,  25  N.  Y.,  194;  see,  also,  Gray  v.  Daugherty,  25  Cal.,  266; 
Jones  V.  City  of  Petaluma,  .36  id.,  230;  Morris  v.  Hoyt,  11  Mich.,  9. 


EEFERENCE   OF   TITLE.  631 

to  acts  the  performance  of  which  the  vendor  can  enforce  in 
a  court  of  justice,  as,  for  instance,  by  calling  on  a  trustee  to 
convey  the  estate  vested  in  him.  Tlierefore,  where  an  estate 
tail  was  outstanding  in  a  person  who  had  consented  to  bar 
it,  but  was  not  in  any  way  a  trustee  for  the  vendor,  the 
court  held  that  the  title  was  not  made  out  till  the  recovery 
had  been  fully  perfected,  (b) 

§  1359.  In  Esdaile  v.  Stephenson,  (c)  Leach,  V.  C,  after 
consultation  with  Lord  Eldon,  laid  down  the  rule  "that 
where  a  necessary  party  to  the  title  was  neither  in  law  or 
equity  under  the  control  of  the  vendor,  but  had  an  inde- 
pendent interest,  unless  there  was  produced  to  the  master 
a  legal  or  equitable  obligation  on  the  part  of  the  stranger  to 
join  in  the  sale,  the  master  ought  to  report  against  the  title  ; 
otherwise  where  a  necessary  party  to  the  title  was  under  the 
legal  or  equitable  control  of  the  vendor,  as  a  mortgagee, 
where  the  master  might  well  report  that  upon  payment  of 
the  mortgage  a  good  title  could  be  made." 

§  1360.  The  rule  is  further  illustrated  by  other  cases. 
In  one,  it  was  held  to  be  no  objection  to  title,  that  a  satis- 
fied term  was  outstanding  in  a  lunatic  against  whom  no  com- 
mission had  issued,  so  that  there  was  then  no  person  com- 
petent to  make  the  assignment  :{d)  and  in  another  case,  the 
legal  estate  of  a  moiety  of  the  property  was  outstanding  in 
a  married  woman  or  those  claiming  under  her,  but  she  being 
under  the  order  of  the  court  to  convey  was  bound  by  it, 
and  became  absolutely  a  trustee  for  the  purchaser  under  the 
order  of  the  court :  the  title  was  tlierefore  held  good,  but 
without  prejudice  as  to  the  question  of  conveyance,  (e) 

§  1361.  it  appears  to  have  been  considered  by  Shad- 
well,  V.  C,  to  be  sufficient,  if  the  abstract  showed  that  the 
outstanding  legal  estate  had  been  formerly  vested  in  a  trus- 
tee for  the  vendor,  and  that  the  abstract  was  then  complete, 
though  a  supplemental  abstract  was  necessary  to  trace  the 
legal  estate.  (/)  But  this  decision  seems  at  variance  with 
the  rule  enunciated  by  him  in  the  same  case,  of  which  one 
condition  is  that  the  abstract  must  disclose  in  whom  the 
legal  estate  is  vested,  not  in  whom  it  was  formerly  vested. 
And  accordingly  Lord  Gifford,  M.  R.,  held  that  where  an 

(b)  Lewin  v.  Gust,  1  Ruse.,  325.  (e)  Jumpson  v.  Pitcher,  1  Coll.,  13. 

(c)  6  Mad,,  366.  (/)  Avarne  v.  Brown,  14  Sim.,  .303. 
Id)  Berkeley  v.  Dauh,  16  Ves.,  380. 


682        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

abstract  only  showed  that  the  legal  estate  had  long  since 
been  vested  in  persons  who  would  be  trustees  for  the  ven- 
dor, but  did  not  show  in  whom  the  legal  estate  was  then 
vested,  the  defect  was  one  of  title  and  not  of  conveyance. (<7) 

§  1363.  A  distinction  has  also  been  taken  between  show- 
ing and  making  a  good  title.  A  good  title  is  shown  when 
all  the  matters  essential  to  the  title  are  stated  in  the  ab- 
stract :  it  is  made,  when  those  matters  are  proved. (7/) 

§  130:t.  It  is  evident,  further,  that  there  is  a  distinction 
to  be  drawn  between  matters  of  title  and  of  the  evidence, 
whereby  that  title  is  supported.  The  verification  of  the  ab- 
stract may  be  either  the  one  or  the  other :  thus,  the  verifica- 
tion of  the  deeds  stated  in  the  abstract  is  matter  of  evidence ; 
whilst,  on  the  other  hand,  the  proof  of  a  fact  essential  to 
the  title,  which  can  only  be  proved  by  evidence  documentary 
or  oral — as,  for  example,  the  identity  of  a  person,  or  of  par- 
cels apparently  different  on  the  deeds — is  a  matter  of  title. (/) 

ig)  Wynne  v.  Griffith,  1  Russ.,  283.    See,    Kindersley,  V.  C,  in  Oakden  v.  Pike,  13  W. 
further,  as  to  what  is  a  perlect  abstract,  per    R.,  674;  11  Jur.  N.  S.,  C66. 
Wigram,  V.  C  ,  in  Morlev  v.  Cook,  3  Ha  ,  111 ;       (h)  Parr  v.  Lovegrove,  4  Drew,  170, 181. 
Ward  V.  Ghrimes,  11  W.  R.,  794;  and  per       (i)  Sherwin  v.  Shakspear,  17  Beav.,  267, 

275;  varied  on  appeal,  5  De  Q.  M.  &  G.,  517. 


INTEREST,    RENTS,    DETERIORATION,    ETC.  633 


CHAPTER  V. 

OF   INTEREST,  RENTS,    DETERIORATION,  AND   PAYMENT   INTO 

COURT. 

§  1364.  In  the  case  of  every  contract  of  sale,  the  ques- 
tion arises — At  what  time  does  the  property  in  the  thing- 
sold  pass  from  the  vendor  to  the  purchaser  V 

In  the  case  of  a  contract  for  the  sale  of  real  or  chattel  real 
property  in  this  country,  the  answer  to  this  question  involves 
important  consequences,  some  of  which  it  is  i)roposed  to 
discuss  in  the  present  chapter.  It  will  be  convenient,  there- 
fore, briefly  to  consider  the  effect  of  such  a  contract  as 
between  the  parties  to  it. 

§  1305.  Where  such  a  contract  is  entered  into,  the  legal 
estate  in  the  property  passes,  not  by  the  contract,  but  only 
upon  and  by  virtue  of  the  execution  of  a  subsequent  formal 
deed  of  conveyance,  (a)  The  equitable  estate  or  beneficial 
ownership,  however,  passes,  as  between  the  contracting 
parties,  by  the  contract  itself (&)  but  only  sicb  modo,  or,  in 
other  words,  conditionally  upon  the  contract  being  ulti- 
mately completed  by  the  "fulhllment  by  the  vendor  and 
l)urchaser  respectively  of  the  mutual  obligations  imposed 
on  them  by  the  contract.* 

(a)  See  Austin's  Jurisp  ,  388,  1001-2;  and  (6)  Per  Lord  W  estbury  in  Rose  v.  Wataon, 
per  Grant,  M.  R.,  in  Fludyer  v.  Cocker,  12  10  H.  L.  C  ,678.  Of.  Edwards  v.  West,  7  Ch. 
Ves.,  27.  D.,  862,  and  supra,  §  892. 

'  In  equity,  a  vendee  under  a  contract  for  the  sale  of  lands,  is  considered  as 
a  trustee  of  the  purchase  money  for  the  vendor,  who  is  regarded  as  a  trustee 
of  the  land  for  the  fornaer.  The  laud  is,  in  equitj-,  the  property  of  the  vendee, 
who  may  dispose  of  it,  or  incumber  it  in  like  manner  with  land  to  which  he 
has  the  legal  title,  subject  to  the  ritrhts  of  the  vendor  under  the  contract. 
Wing  V.  McDowell,  Walk.  Ch.,  175. 

'  Immediately  upon  the  contract  to  purchase,  an  equitable  estate  arises  in  the  ven- 
dee.'\  "The  doctrine  of  the  English  courts  is  necessary  to  give  effect  to  the 
principle  that,  in  equity,  immediately  on  the  contract  to  purchase,  an  equitable 
estate  arises  in  the  vendee,  the  legal  estate  remaining  in  the  vendor  for  his 
benefit  Qualified  by  the  obligation  to  make  compensation  to  any  subsequent 
bona  fide  purchaser,  who  has  paid  only  part  of  the  consideration  moriey,  for  all 
disbursements  made  l)efore  notice,  the  rule  is  every  way  consonant  with  correct 
principles.  Such  indemnity  is  protection  pro  tanto.  The  rule  of  law  which 
deprives  a  subsequent  purchaser  who  has  contracted  and  accepted  a  convey- 
ance, and  paid  part  of  the  purchase  money,  in  good  faith  of  the  fruits  of  Ms 
purchase,  without  indemnity,  is  extremely  harsh,  and  often  oppressive  in  its 
application.     Mitigated  by  the  obligation  to  make  indemnity  for  payments 


634        FRY  ON  SPECIFIC  PEKFOKMANCE  OF  CONTRACTS. 

It  follows  (it  is  conceived)  that  upon  the  completion  of 
the  contract  the  condition  is  satisfied,  and  the  vesting  of  the 
equitable  as  well  as  of  the  legal  estate  becomes  absolute ; 
but  that  upon  the  contract  coming  to  an  end  in  any  other 
way  than  by  completion  the  equitable  estate  revests  in  the 
vendor,  (c) 

§  1360.  It  is,  then,  important  to  inquire  what  are  the 
mutual  obligations  of  the  parties  to  a  contract  of  the  kind 
under  discussion.  It  is  submitted  that,  in  the  absence  of 
express  stipulation,  they  are  shortly  as  follows  : — 

^  1 367.  The  vendor  is  bound — 

1.  To  show  a  good  title  to  the  property  contracted  to 
be  sold. 

2    i  (a)  To  take  reasonable  care  of  the  property,  and 
( (b)  to  pay  the  outgoings,  until  the  jiurchaser  takes, 
or  ought  to  take,  possession  of  it. 
3.  Upon  being    paid    the    purchase -money,    and   any 
interest  on  it  that  may  have  become  payable, 

(c)  to  execute  and  i^rocure  the  execution  by  all 
other  necessary  parties  (if  any)  of  a  proper 
deed  of  conveyance  vesting  the  legal  estate  in 
the  purchaser,  and 

(d)  to  put  him  in  possession  of  the  property. 

§  1368.  It  is  in  regard  of  these  or  some  of  these  obliga- 
tions that  the  vendor  has  been  said  to  be  a  constructive 
tmstee,  or  a  trustee  suh  modo,  of  the  estate  for  the  pur- 
chaser from  the  time  when  the  contract  is  constituted.  («^) 

§  1369.  On  the  other  hand,  the  purchaser  is  bound — 

1.  As  soon  as  either  the  vendor  has  shown  a  good  title, 
or  he  (the  purchaser)  has  accepted  such  title  as  the  vendor 
shows  or  has, 

(c)  See  per  Plumer,  M.  R„  in  Wall  v.  L.  R.  5  H  L,  338,349,  350;  per  Jeseel,  M.  B., 
Briffht  IJ  &  W  .  501.  in  Lvsaght  v.  Edwards,  3  Ch.  D.,  506-510; 

(d)  See  per  Plumer.  M.  R.,  in  Wall  v.  per  James,  L.  J.,  in  Rayner  v.  Preston,  29 
Bright,  IJ.  &  W.,  500-51)3;  Shaw  v.  Foster,  AV.  R.,  550. 


and  expenditures  before  actual  notice,  its  operation  is  nevertheless  frequently- 
inequitable.  A  party  who  seeks  the  enforcement  of  a  rule  of  this  nature  against 
another  who  is  innocent  of  actual  fraud,  must  seek  his  remedy  promptly.  He 
may  lose  his  right  to  specific  relief  against  the  land  by  laches,  and  be  remitted 
to  the  unpaid  purchase  money  as  the  only  relief  which  will  be  equitable." 
Dupue,  J.,  in  Houghwout  v.  Murphy,  22  N.  J.  Eq.,  531. 


INTEREST,    KENTS,    DETERIORATION,    ETC.  635 

(a)  to  pay  the  purcliase-money,  and  any  interest 
on  it  that  may  have  become  payable,  and 

(b)  to  take  possession  of  the  property  (that  the  ven- 
dor may  be  relieved  from  all  future  liabilities 
incident  to  the  ownership.) 

2.  To  bear  the  loss  resulting  from  any  accidental  injury 
to  the  property  happening  after  the  contract  has  been 
constituted,  (e) 

In  regard  to  the  first  of  tliese  obligations  the  purchaser 
has  been  said  to  be  constructively  a  trustee  of  the  purchase- 
money  for  the  vendor.  (/") 

§  1370.  In  addition  to  the  above  obligations,  the  con- 
tract gives  or  may  give  rise  to  certain  liens — of  the  vendor 
for  unpaid  purchase-money,  and  of  the  purchaser  for  the 
deposit  or  other  portion  of  the  purchase-money  paid  before 
completion,  but  these  really  result  from  the  non-perform- 
ance, in  some  respect,  to  the  contract,  rather  than  from  the 
contract  itself. 

§  1371.  If  the  foregoing  statement  of  the  obligations  of 
the  parties  to  the  contract  of  the  kind  under  discussion  be 
correct,  it  follows  that,  where  the  contract  contains  no  ex- 
press stipulation  on  the  jjoint,  the  transfer  of  the  possession 
of  the  estate  from  vendor  to  purchaser  ought  to  be  contem- 
i:)oraneous  with  the  completion  of  the  contract. 

In  practice,  however,  possession  is  often  taken  by  the  pur- 
chaser at  an  earlier  date,  in  pursuance  either  of  an  express 
term  of  the  contract,  or  of  some  extrinsic  act  of,  or  arrange- 
ment between,  the  parties.' 

§  137S.  Now  it  is  obviously  inequitable,  in  the  absence 
of  express  and  distinct  stipulation,  that  either  party  to  the 
contract  should  at  one  and  the  same  time  enjoy  the  benefits 
flowing  from  possession  of  the  property  and  those  flowing 

(«)  See  Lyeaght  v.  Edwards,  2  Ch.  D  ,  507;       (/)  See  the  cases  cited  at  the  footof  §  1368 
and  cf.  Inet.  Hi  23,  3.    Distinguinh  Counter    supra. 
V.  Macpherson,  5  Moo.  P.  C.  C.  63,  eupra,  § 
893. 

1  Purchase  of  property  pendenU  lite.']  Where  a  party  purchases  property  pcn- 
dente  lite,  he  is  bound  by  the  decree  made  against  his  vendor.  It  is  not  neces- 
sary that  he  should  be  made  a  party  to  the  action.  Sorrell  v.  Carpenter,  2  P. 
Wms.,  482;  Garth  v.  Ward,  2  Atk.,  175;  Gaskell  v.  Durdin,  2  B.  &  B.,  169; 
Masson's  App.,  70  Pa.  St.,  27;  Metcalf  v.  Pulnertorft,  2  V.  &  B.,  205;  Snow- 
man V.  Harford,  57  Me.,  397. 


636        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

from  possession  of  the  purchase-money.  The  estate  and  the 
purchase-money  are  things  mutually  exclusive.  "You 
cannot,"  said  Knight  Bruce  (then)  V.  C,  in  a  case  arising 
out  of  the  sale  of  some  slob  lands  in  Chichester  harbor, 
"have  both  money  and  mud."  And  so  neither  party  can 
at  the  same  time  be.  entitled  both  to  interest  and  to  rents.  (.7) 
§  1373.  The  general  principles  laid  down  in  the  prece- 
ding section  of  this  chapter  are  of  primary  importance  in 
determining 

(1)  The  respective  rights  and  liabilities  of  vendor  and 
purchaser  in  regard  of  interest  on  the  purchase-money 
and  the  rents  and  profits  and  outgoings  of  the  estate : 

(2)  their  respective  rights  and  liabilities  in  regard  of 
the  deterioration  of  the  estate  after  the  constitution  of  the 
contract : 

(3)  the  right  of  the  vendor  to  have  unpaid  purchase- 
money  paid  into  court. 

The  application  of  these  principles  to  any  particular  case 
of  contract  may,  however,  be,  and  in  practice  usually  is, 
modified  by  express  stipulations  embodied  in  the  contract. 

§  1374.  With  these  preliminary  observations  it  is  pro- 
posed to  consider  the  rather  complicated  questions  which 
arise  between  vendor  and  purchaser  in  respect  of  rents, 
interest,  outgoings,  deterioration,  and  payment  into  court, 
under  the  following  heads,  viz.  : 

I.  Where  the  vendor  is  in  possession  of  the  estate, 
either  by  receipt  of  the  rents  or  by  personal  occupation. 

II.  AVhere  the  purchaser  is  similarly  in  possession  of 
the  estate. 

1.  WJiere  tlie  vendor  is  in  possession. 
§  1375.  Where  the  contract  fixes  no  time  for  the  com- 
pletion of  the  purchase,  and  is  silent  as  to  the  rents  and 
interest,  there  prima  facie  the  vendor,  it  is  conceived,  is 
entitled  to  the  produce  of  the  purchase-money,  in  the  shape 
of  interest,  and  the  purchaser  has  a  corresponding  right  to 

(a\  As  to  manorial  fines,  see  Garrick  v.    Earl  Camden,  2  Cox,  231;  Cuddon  v.  Tite,  1 
^^'  Glff.,395. 


INTEREST,    RENTS,    DETERIORATION,    ETC.  637 

the  produce  of  the  estate,  in  the  shape  of  tenants'  rents  or 
occuj)ation  rent,  as  from  the  time  when  the  contract  ought 
to  have  been  completed  and  the  transfer  of  possession  to 
have  taken  place  as  a  part  of  such  completion, 

§  1376.  Where,  as  is  usually  the  case,  the  contract  fixes 
a  time  for  completion,  there  prima  facie,  and  in  the 
absence  of  stipulation,  the  time  so  fixed  is  the  time  from 
which  the  purchaser  is  liable  to  the  payment  of  interest  and 
is  entitled  to  the  rents.  But  this  rule  must  be  taken  sub- 
ject to  several  exceptions.  (7<^) 

§  1377.  First,  where  the  interest  is  much  more  in  amount 
than  the  rents,  and  the  delay  in  completion  is  clearly  made 
out  to  have  been  occasioned  by  the  vendor,  the  court,  to 
prevent  the  vendor  from  gaining  an  advantage  by  his  own 
wrong,  gives  him  no  interest,  but  leaves  him  in  possession 
of  the  interim  rents. (/)  In  such  cases,  the  day  at  which  the 
interchange  of  j)roperties  is  treated  as  taking  place  is  re- 
moved from  the  time  fixed  for  completion  to  the  time  at 
which  a  good  title  is  first  shown. (j)' 

§  1378.  In  one  case,  where  a  vendor  had  retained  pos- 
session of  the  whole  of  the  estate  and  of  one- third  of  the 
purchase-money  for  fifteen  years,  and  the  delay  was  wholly 
due  to  his  wrongful  conduct,  Plumer,  M.  R.,  not  feeling 
himself  justified  in  removing  the  time  for  the  interchange 
of  properties  from  the  time  fixed  for  completion,  endeavored 
to  meet  the  equity  of  the  case  by  giving  the  purchaser  the 
whole  of  the  rents  and  interest  on  one-third  of  the  rents  in 
each  year  from  the  time  of  their  accruing.  (/»:) 

§  1379.  Secondly,  where  the  title  is  made  out  in  cham- 
bers, the  day  when  the  title  is  made  out  is  the  day  on  which 
the  purchaser  comes  under  an  obligation  to  complete. 
Hence  up  to  that  day,  the  vendor  is  entitled  to  the  rents, 
and  the  purchaser  to  interest  on  the  deposit  paid  to  the 
vendor ;  and  from  that  day  the  purchaser  takes  the  rents 

{h)  Consider  Blnks  v.  T,ord  Rokeby,  2  Sw.,  Rogers,  G  Mad.,  230.    It  seems  previously  to 

225,  22G;  Carrodus  v.   Sharp,  20  Beav  ,  58;  have  been  held  that  Interest  necessarily  ran 

Wells  V.  Maxwell  (No  2),  32  Beav.,  550;  and  from  the  date  for  completiou.    See  Wilson  v. 

see  supra,  §§  1369, 1371.  Clapham,  IJ.  &  W.,  36;  per  Plumer,  M.  R., 

(i)  Esdaiie  v.  Stephenson,  1  S.  &  S.,  132.  in  Burton  v.  Todd,  1  Sw.,  260. 

(j)  Jones  V.  Mudd,  4  Russ.,  118;  Paton  v.        (A)  Burton  v.  Todd,  1  Sw.,  255. 

'  See  Sohier  v.  Williams,  2  Curtis  C.  C,  195;  Springle  v.  Shields,  17  Ala., 
295.  It  is  to  be  said  that  whenever  interest  is  recoverable  at  law,  the  courts  of 
chancery  allow  it.     Crocker  v.  Clements,  23  Ala.,  296. 


638        FRY  ON  SPECIFIC  PERFORMANCK  OF  CONTRACTS. 

and  pays  the  vendor  interest  on  the  unpaid  balance  of  the 
purchase-money.  {lY 

§  1380.  Accordingly  where  a  suit  was  instituted  for  the 
specific  performance  of  a  contract  to  buy  a  mill,  and  the 
decree  was  made  in  Februarj^,  1854,  but  a  good  title  was 
not  shown  till  December  of  that  year,  and  a  question  arose 
as  to  who  was  to  bear  the  expenses  and  outgoings  belonging 
to  the  mill,  and  to  the  repairs  and  sustentation  of  the 
premises  and  the  machinery,  Lord  Romilly,  M.  K.,  decided 

(D  Pincke  v.  Curteis,  4  Bro.  C.  C,  333.    Cf.    Enraght  v.  Fitzgeral  (a  sale  of  a  reversion), 

2  Dr.  &  War.,  43. 


1  Who  is  liable  for  repairs  and  losses  ?]  By  the  coatract  of  sale,  the  vendee 
was  to  cut  no  timber  until  the  entire  price  had  been  paid.  Held,  that  the 
vendee  had  an  equitable  right  to  such  timber,  and  that  his  legal  ri^ht  dated 
from  the  time  that  he  fulfilled,  or  offered  to  fulfill,  the  contract,  notwithstand- 
ing he,  or  some  one  else,  had  wrongfully  cut  such  timber.  Where  the  loss  is 
accidental,  and  happens  entirely  without  the  fault  of  the  vendor  after  the  prop- 
ert}'  has  been  sold,  such  loss  must  be  sustained  by  the  vendee.  Thompson  v. 
Gould,  20  Pick.,  134;  Blem  v.  McClelland,  29  Mo.,  804;  Hill  v.  Cumberland 
Co.,  59  Pa.  St.,  474.  If  the  vendor  cannot  make  a  good  title,  and  a  loss  occurs 
after  a  sale,  the  vendor  must  sustain  the  loss.  Christian  v.  Cahill,  22  Gratt.,  82. 
Where  an  accidental  loss  occurs  pending  a  contract  of  sale,  the  true  test  as  to 
which  party  should  bear  the  sale  is,  wiio  ow^ned  the  property  at  the  time  ? 
Willis  V.  Culver,  107  Mass.,  514. 

Tinpromments.']  A  purchaser  of  land  was  in  possession,  and,  on  a  bill  of 
specific  performance,  established  his  right  against  the  vendor  and  a  subsequent 
purchaser  having  notice.  Held,  that  specific  performance  would  be  decreed, 
so  as  to  give  him  his  improvements.  Boyd  v.  Vanderkemp,  1  Barb.  Ch. ,  273. 
In  a  case  where  a  vendee  makes  valuable  improvements  on  the  faith  of  a  con- 
tract, but  specific  performance  is  denied  him,  compensation  for  such  improve- 
ments may  be  made  a  charge  on  the  land,  imless  the  equity  of  a  third  person 
has  intervened.  Alday  v.  Echols,  18  Ala.,  353;  Hilton  v.  Duncan,  1  Coldw., 
313;  Evans  v.  Battle,  19  Ala.,  389;  Pitcher  v.  Smith,  2  Head,  208;  Cox  v.  Cox, 
59  Ala.,  591;  Williams  v.  Champion,  6  Ohio,  169.  Story,  J.,  said  in  Bright  v. 
Boyd,  1  Story,  478:  "It  appears  to  me,  speaking  with  all  deference  to  other 
opinions  that  the  denial  of  all  compensation  to  such  bona  fide  purchaser,  in  such 
a  case,  where  he  has  manifestly  added  to  the  permanent  value  of  an  estate  by 
his  meliorations  and  improvements,  without  the  slightest  suspicion  of  any  in- 
firmity in  his  own  title,  is  contrary  to  the  first  principles  of  equity.  Take  the 
case  of  a  vacant  lot  in  a  city,  where  a  bona  fide  purchaser  builds  a  house  thereon, 
enhancing  the  value  of  the  estate  ten  times  the  original  value  of  the  land,  under 
a  title  apparently  perfect  and  complete.  Is  it  reasonable  or  just  that,  in  such 
a  case,  the  true  owner  should  recover  and  possess  the  whole,  without  any  com- 
pensation whatever  to  the  bona  fide  purchaser  ?  To  me  it  seems  manifestly  un- 
just and  inequitable,  thus  to  appropriate  to  one  man  the  propertj^  and  money 
of  another  who  is  in  no  default.  The  argument,  I  am  aware,  is,  that  the 
moment  the  house  is  built,  it  belongs  to  the  owner  of  the  land  by  mere  opera- 
tion of  law,  and  that  he  may  certainly  possess  and  enjoy  his  own.  But  this  is 
merely  stating  the  technical  rule  of  law,  l)y  which  the  true  owner  seeks  to  hold 
what,  in  a  just  sense,  he  never  had  the  slightest  title  to — that  is,  the  house.  It 
is  not  answering  the  objection,  but  merely  and  dryly  stating  that  the  law  so 
holds.  But,  then,  admitting  this  to  be  so,  does  it  not  furnish  a  strong  ground 
why  equitj'  should  interpose  and  grant  relief  ?  I  have  ventured  to  suggest  that 
the  claim  of  the  bona  fide  purchaser,  under  such  circumstances,  is  founded  in 
equity.  I  think  it  founded  in  the  highest  equity,  and,  in  this  view  of  the  mat- 
ter, I  am  supported  by  the  positive  dictates  of  the  Roman  law." 


INTEREST,    KENTS,    DETEEIOEATION,    ETC.  639 

tliat  these  must  be  borne  by  the  vendor  up  to  the  time  at 
which  the  imrchaser  conkl  prudently  take  jDossession, 
which  is  the  time  at  which  a  good  title  is  shown,  and  after 
that  by  the  i3urchaser.(m) 

§  1381.  Where,  however,  the  title  has  not  been  made 
out  till  after  action  brought,  but  the  delay  has  arisen  from 
the  purchaser's  raising  other  points  which  made  the  action 
necessary,  then,  the  delay  not  being  the  fault  of  the  vendor, 
interest  will  run  from  the  day  fixed  for  completion.  (7i) 

§  1383.  Thirdly,  where  the  contract  leaves  the  amount 
of  the  purchase-money  to  be  subsequently  ascertained, 
interest  will  not  begin  to  run  until  the  purchase-money  is 
actually  ascertained,  notwithstanding  that  the  time  fixed 
hj  the  contract  for  completion  may  have  arrived  before  this 
is  done.  Thus  in  a  case  where  the  contract  provided  that 
the  price  should  be  determined  by  the  award  of  a  surveyor, 
the  Court  of  Ai)j)eal  in  Chancery  held  that  the  vendor  must 
pay  the  outgoings  up  to  the  date  of  the  award,  and  was  en- 
titled to  interest  only  as  from  that  date,  although  the  con- 
tract also  contained  a  clause  providing  that  the  purchase- 
money  paid  at  a  time  which,  in  the  events  which  haj)pened, 
arrived  more  than  fourteen  months  before  the  award  was 
made.(o) 

§  1383.  Fourthly,  the  purchaser  was  discharged  from  his 
pri7Jid  facie  obligation  to  pay  interest  on  the  unpaid  pur- 
chase-money where  the  purchase-money  has  been  appropria- 
ted by  him  and  has  been  unproductive,  (p)  and  notice  to  this 
effect  has  been  given  by  the  i^urchaser  to  the  vendor.  (^) 
"Where  nothing  appears  to  occasion  the  delay,"  said  Lord 
Cottenham,  "the  rule  no  doubt  is,  that  the  purchaser,  who 
on  the  face  of  the  contract  is  under  the  necessity  of  paying 
on  a  certain  day,  sets  apart  his  money,  and  gives  notice  that 
it  is  ready,  interest  stoj)s  from  that  time,  provided  it  be 
shown  that  he  made  no  interest  of  it."(r)  And  even  in  con- 
tracts  by    railway    companies    taking   land    under    their 

(m)  Carrodus  v.  Sharp,  30  Beav.,  56.  (7)  Powell  v.  Martyr,  8  Ves.,  146;  Roberts 

(n)  Monro  t.  Taylor.  3  Mac.  &  G.,  713.  v.  Massey,  13  Ves.,  Stjl;   Dyson  v.  Hornby,  4 

(o)  Catling  v.  Great  Xorthern  Railway  Co.,  De  G.  &  Sm.,  4S1 ;  Ilowland  v.  Norris,  1  Cox, 

18  W.  R..  1-21;  21  L.  T.  X.  S  ,  17.    In  this  case  59;  Regent's  Canal  Co.,  v.  Ware,  23  Beav., 

the  possession  appears  to  have  been  vacant  575.    Cf.  Kershaw  v.  Kershaw  (purchaser  in 

during  the  period  in  dispute.     Cf.  Re  Eccles-  possession),  L.  R.  9  Eq.,  .")6. 

hill  Local  Board,  13  Ch.  D..  365.  (r)  lu  De  Visme  v.  De  Visme,  1  Mas.  &  G., 

(p)  As  to  the  result  where  the  purchaser  352. 
maKes  any  profit  on  the  appropriated  money 
see  infra,  §  1424. 


640        FRY  ON  SPECIFIC  PERFORMANCE]  OF  CONTRACTS. 

compulsory  powers,  where  the  owner  makes  default  in 
completing  the  sale,  interest  will  cease  upon  appropriation 
of  the  purchase-money,  with  notice  that  it  is  unemployed.  (5) 

§  1384.  The  general  rule  which  we  have  been  discussing 
may,  of  course,  be  excluded  by  express  stipulation,  as  where 
conditions  of  sale  reserved  the  rents  to  the  vendor,  which 
Avas  held  to  exonerate  the  purchaser  from  the  payment  of 
interest  on  the  unpaid  purchase-money.  (^) 

§  1385.  The  contract  very  commonly  contains  a  condi- 
tion to  the  effect  that  the  purchaser  shall  pay  interest  from 
the  day  apxDointed  for  completion  from  whatever  cause  the 
delay  may  arise.  In  a  case  decided  in  the  year  1822,  Leacih, 
V.  C,  held  that  the  mere  fact  of  the  delay  having  arisen  on 
the  part  of  the  vendor  did  not  release  the  purchaser  from 
the  obligation  of  such  condition,  and  that  accordingly  he 
was  bound  to  pay  interest,  ('2^)  and  in  a  case  where  the  con- 
ditions of  a  sale  under  the  court  stipulated  for  payment  of 
the  purchase-money  on  a  certain  day,  and  that,  if  from  any 
cause  whatever  it  should  not  theij  be  i)aid,  interest  should 
be  paid  at  £5  per  cent. ;  and  there  was  great  difficulty  and 
delay  on  the  vendor's  part ;  Lord  Langdale,  M.  R.,  ordered 
the  payment  of  interest  according  to  the  contract,  but 
without  prejudice  to  any  application  for  compensation. («) 

§  1386.  However  in  another  case,  where  there  was  a 
stipulation  that  if,  by  reason  of  any  unforeseen  or  unavoid- 
able obstacles,  the  j)urcliase  should  not  be  completed  by  the 
day  fixed,  the  X3urchaser  should  from  that  day  pay  interest 
at  £5  per  cent,  on  his  purchase  money  and  be  entitled  to  the 
rents,  and  the  vendor  did  not  show  a  good  title  till  long 
after  the  specified  day,  Leach,  V.  C,  held  that  the  stipula- 
tion would  not  make  interest  run  before  the  time  when  a 
good  title  was  shown,  but  would  only  affect  its  vsite.{w) 

§  1387.  In  the  case  of  De  Visnie  v.  De  Visme,(a;)  the 
effect  of  such  conditions  was  very  elaborately  considered  by 
Lord  Cottenham,  and  his  lordship  held  that  a  condition  for 

(s)    Regent's  Canal  Co.  v.  Ware,  23  Beav.,  sion,  but  the  only  question  that  arose  was  as 

575.  to  Interest. 

it)  Brooke  v.  Champernowne,  4  CI.  &  Fin.,  (w)  Monk  v.   Huskisson,  4  Russ.,  121,  n. 

589,  611.  This   case    seems  irreconcilei.ble   with  the 

(u)  Esdaile  V.  Stephensen,  1  S.  &  S.,  122.  same  V.  C  's  decision  in  Esdallev.  Stephen- 
See  Lord  St.  Leonards'  observations  on  this  son  (1  S.  &  S.,  122;,  supra,  §  1385,  and  Lord 
point,  St.  Leon.  Vend.,  529  et  seq.  St.  Leonards  thought  it  wrong.    St.  Leon. 

(v)  Greenwood  t.  Churchill.  8  Beav.,  413.  Vend.,  521. 

In  this  case  the  purchaser  had  taken  posses-  (x)  1  Mac.  &  G.,  336.  reversing  the  decision 

ot  Wigram,  V.  C,  13  Jur.,  205. 


INTEREST,    RENTS,    DETERIORATION,    ETC.  641 

the  payment,  in  case  of  delay,  of  interest  from  the  day 
appointed  for  completion,  from  whatever  cause  the  delay 
might  have  arisen,  did  not  apply  to  a  case  of  the  vendor's 
own  default,  but  that  in  that  case  interest  ran  only  from  the 
time  when  a  good  title  was  shown.  "There  are  two  ways," 
said  his  lordship,  "in  which  this  case  may  be  met  in  argu- 
ment and  upon  principle.  It  may  either  be  considered  that 
that  which  has  happened  is  not  within  the  contract,  that  is, 
that  the  party  never  did  mean  to  contract  that  he  would 
pay  interest,  although  he  might  be  prevented  from  having 
the  benetit  of  his  purchase  by  the  default  of  the  vendor, 
and  in  this  view  it  is  the  ordinary  case  of  doing  justice 
between  the  parties,  an  event  having  arisen  which  was  not 
expressly  provided  for  by  the  contract ;  or  it  may  be  con- 
sidered that  interest  must  be  paid  upon  the  purchase-money, 
according  to  the  terms  of  the  contract,  although  the  vendor 
has  not  performed  his  part  of  the  contract,  and  the  pur- 
chaser has  been  thereby  exposed  to  damage  (the  damage 
being  the  difference  between  the  interest  and  the  annual 
value  of  the  property),  and  then,  although  this  is  a  de- 
parture from  the  terms  of  the  previous  contract,  which  the 
court  would  not  regard  as  a  bar  to  decreeing  a  specific  per- 
formance, yet  that  the  court  will  in  this  case  regard  it,  by 
giving  to  the  purchaser  comx)ensation  for  the  loss  he  has 
sustained  by  the  non-performance  of  the  whole  contract  by 
the  vendor. "(?/)  "My  opinion,"  said  his  lordshii:>,  in  con- 
clusion, (2)  "is,  that  the  vendors  being  in  default,  the  delay 
having  been  occasioned  by  their  not  performing  their  part 
of  the  contract,  are  not  to  exact  from  the  purchaser  the  pay- 
ment of  interest  until  the  time  they  shewed  a  good  title  on 
their  abstract:  the  effect  of  that  is  to  postpone  the  day 
agreed  on  for  the  completion  of  the  contract,  until  the  time 
when  the  vendors  put  themselves  right,  and  showed  their 
title  to  be  good  on  the  abstract.  The  result  therefore  is, 
that  until  that  time  there  would  be  no  demand  to  be  made 
by  the  vendors  for  the  payment,  and  therefore  the  interest, 
which  was  to  stand  in  the  jDlace  of  that  payment,  had  not 
commenced  to  run  :.  it  did  run  when  they  shewed  a  good 
title,  and  not  before." 

(y)  1  Mac.  &  G  ,  348.  («)  1  Mac.  &  G.,  353. 

41 


642        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

§  1388.  The  cases  at  commou  law,  deciding  that  the 
exception  in  a  charter-party  as  to  pirates  will  not  be  held 
to  exempt  the  owners  from  liability,  where  the  ship  has 
fallen  into  the  hands  of  pirates  by  the  master's  negli- 
gence, (a)  and  that  a  stipulation  in  a  bill  of  lading  exempt- 
ing the  carrier  from  liability  in  respect  of  leakage  and 
breakage  will  yet  not  comprise  leakage  and  breakage  caused 
by  his  negligence  or  that  of  his  servants, (Z>)  seem  to  furnish 
close  analogies  with  the  decision  in  De  Visme  v.  De  Yisme.(c) 
It  is  in  fact  an  instance  of  the  general  principle,  that  no 
man  shall  take  advantage  of  liis  own  wrong. 

§  1389.  Still,  the  decision  in  De  Visme  v.  De  Yisme  v\'as 
an  innovation,  and  the  i>rinciples  which  it  applied  to  con- 
ditions of  the  kind  now  under  consideration  have  not  been 
accepted  by  co-ordinate  authority(<^)  as  supplanting  the 
former  rule  of  the  court — which  was  and,  it  is  conceived, 
now  is,  that  such  conditions  are  to  have  effect  given  to 
them  according  to  the  natural  and  literal  meaning  of 
their  words,  except  only  where  there  is  bad  faith,  vexa- 
tious conduct,  or  gross  negligence — in  other  words,  some- 
thing amounting  to  willful  default — on  the  part  of  the 
vendor,  disentitling  him,  in  the  view  of  the  court,  to  the 
benefit  of  the  stipulation,  (e) 

§  1390.  Therefore  delay  arising  from  mere  accident,  or 
from  something  which  the  vendor  could  not  have  guarded 
against,  or  from  difficulties  occasioned  by  the  state  of  the 
title,  is  not  enough  to  exemjot  the  purchaser  from  the  pay- 
ment of  interest  in  such  cases,  even  though  the  difficulties 
may  be  such  as  to  justify  the  purchaser  in  refusing  to  com- 
plete till  they  are  removed.  (/)  Indeed  it  may  fairly  be 
said  that  the  insertion  of  such  a  condition  in  a  contract 
shows  that  the  possilility  of  delay  arising  on  the  vendor's, 
no  less  than  on  the  purchaser's  part,  is  from  the  first 
contemplated  by  both  iDarties,  and  that  there  can  therefore 
be  no  hardship  on  the  purchaser  in  holding  him,  subject 

(a)  Abbott  on  Shipping  (12tb  ed.),  330;  De  5-23.    In  Robertson  v.  Skelton  (!2  Beav.,  3C3), 

Rothschild  V.  Royal  Mail  bteam  Packet  Co.,  Lord  Langdale,  M.  R.,  simply  obeyed  Lord 

7  Ex.,  736.            "  Cotteuham's  decision  in  De  Visme  v.    De 

(6)  Phillips  V.  Clark.  26  L.  J.  C.  P.,  168.  Visme,  ubi  supra. 

\c)  1  Mac.  &  G.,  336  (e)  St.  Leon.  Vend.,  5-23.    See  too  Herbert 

{d)  Sherwin  a.  Shakspear,  5  De  G.  M.  &  G.,  v.  Salisbury  and  Yeovil  Railway  Co.,  L.  R.  2 

517  (varying  S.  C.  17  Beav.,  267);  Williams  v.  Eq.,  221 ;  infra,  §  1421. 

Glenton,  L.  R.  1  Ch.,  200(S.  C.31Beav.,52S).  { /")  Sherwin    v.  Shakspear,   Williams   v. 

Consider  Birch  V.  Podmore,  St  Leon.  Vend.,  Glenton,  ubi  supra. 
521,  523,  and  Oxenden  v.  Lord  Falmouth,  id. 


INTEREST,    RENTS,    DETERIORATION,    ETC.  643 

only  to  the  admitted  exceptions  already  mentioned,  to  the 
literal  performance  of  the  condition. 

§  1391.  In  accordance  with  the  rule  stated  in  the  last 
section  but  one,  it  has  been  held  that  the  fact  that  a  suffi- 
cient abstract  is  not  delivered  in  time  will  not  deprive  the 
vendor  of  the  interest  which  he  has  stipulated  for:(^)  so 
again  in  a  case  where  there  was  a  condition  of  the  kind  now 
under  discussion,  and  delay  arose  from  circumstances  under 
which  the  court's  approbation  (which  was  necessary  to  the 
sale)  was  to  be  obtained,  and  neither  party  was  to  blame, 
the  vendors  were  held  to  be  entitled  to  interest  by  force  of 
the  condition,  although  the  interest  greatly  exceeded  the 
amounts  of  the  rents  of  the  land:(7i)  and  to  where,  there 
being  a  similar  condition  in  the  contract,  it  became  neces- 
•sary,  in  order  to  make  a  good  title,  that  a  suit  should  be 
instituted  to  procure  the  rectification  of  the  power  under 
which  the  vendors  sold,  the  x)urcliaser  was  held  bound  to 
pay  interest  from  the  day  named  for  completion.  (?) 

§  1893.  The  condition  of  course  ai)i)lies  where  the  delay 
arises  from  an  untenable  objection  taken  on  the  part  of  the 
purchaser  :(y)  it  operates  also  where  the  delay  arises  from 
the  act  of  God,  as  the  death  of  the  vendor.  (A-) 

§  1393.  Whether,  where  there  is  a  condition  of  this  kind, 
a  purchaser  can  nevertheless  exempt  himself  from  the  pay- 
ment of  interest  by  specially  investing  the  purchase-money, 
and  giving  the  vendor  notice  that  it  has  been  thus  appro- 
priated to  the  purposes  of  the  contract,  seems  to  be  at  least 
doubtful.  (Z) 

§  1394.  The  court  will  construe  a  condition  fixing  the 
time  from  which  interest  is  to  run  in  connection  with  an- 
other fixing  the  time  for  the  delivery  of  the  abstract :  so 
that  where  there  is  a  condition  that  the  abstract  shall  be  de- 
livered by  a  certain  day,  and  interest  shall  begin  to  run 
from  another  and  subsequent  day,  and  a  perfect  abstract  is 
in  fact  not  delivered  till  after  the  time  fixed  for  that  pur- 
pose, interest  will  not  run  from  the  day  specified  in  that 
behalf,  but  from  a  day  so  long  after  the  actual  delivery  "of  a 

(£/)  Rowley  v.  Adams,  1-2  Beav.,  470.    See  (J)  Storry  v.  Walsh,  IS  Beav.,  559. 

also  Cowpe  V.  Bakewell,  13  Beav.,  4il;  Dy-  (k)  Bannerman  v.  Clarke,  3  Drew.,  632. 

son  V.  Hornby, 4  De  U.  &  Sni.,  481;  Vickers  v.  (/)  Compare  De  Visme  v.  De  Visme,  1  Mac. 

Hand,  26  Beav.,  030.  &  G.,  336,  and  Vickers  v.  Hand,  -26  BeaT., 

(fc)  Tewart  v.  Lawson,  3  Sm.  &  Gif.,  307.  630,  with  Williams  v.  Gleuton,  L.  R.  1  Ch., 

<i)  Lord  Palmerston  v.  Turner,  33  Beav.,  206,  and  Denning  v.   Henderson,  1  De  G.  & 

524.  Sm.,6S9. 


644        KRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

perfect  abstract,  as  the  day  stipulated  for  tlie  commence- 
ment of  interest  was  after  the  day  stipulated  for  the  deliv- 
ery of  the  abstract,  (m) 

§  1395.  The  amount  on  which  the  purchaser  pays  inter- 
est is  the  purchase-money  less  the  deposit :  and  this  applies 
even  where  the  action  may  have  been  made  necessary  by 
the  purchaser's  conduct. (?i) 

§  ItMHi.  The  vendor  is  not,  it  seems,  generally  liable  to 
pay  interest  on  the  deposit,  if  the  contract  proceed,  (o) 

§  1397.  The  rate  of  interest  usually  allowed  is  four  per 
cent.(^:')    But  this,  of  course,  maybe  varied  by  contract,  (g-) 

In  one  case  interest  at  the  rate  of  five  per  cent  was  given, 
where  the  circumstances  did  not  justify  the  delay  in  paying 
the  money,  the  then  Lord  Chief  Baron  (sitting  for  Plumer, 
M.  R.,)  observing,  "  that  he  had  always  been  of  opinion, 
that  a  party  withholding  money  from  a  person  entitled  to 
it,  ought  to  pay  to  the  person  thus  injured  the  interest 
which  he  might  have  made  of  it,  if  it  had  been  paid 
before.  "(?■)  But  this  does  not  appear  to  be  the  rule  of  the 
court.  (5) 

§  1398.  The  fact  that  a  purchaser  has  been  making 
profit  by  his  money  whilst  it  is  at  his  risk,  and  he  is  liable 
to  interest,  is  no  ground  for  increasing  the  rate  of  interest 
payable  to  the  vendor.  (^^) 

§  1399.  Whenever  a  purchaser  has  to  pay  interest  to 
the  vendor,  he  is  entitled,  on  making  the  payment,  to 
deduct  the  income-tax  on  the  amount  of  the  interest. (1^) 

§  1400.  The  vendor  in  receipt  of  tenants'  rents  is  generally 
charged  only  with  the  rents  he  has  received,  but  he  may,  ^ 
■  under  certain  circumstances,  be  charged  with  those  which 
Avithout  his  willful  neglect  or  default  he  might  have  re- 
ceived. («) 

§  1401.  In  a  case  before  Plumer,  M.  R.,  the  vendor  was 
so  charged,  where  the  circumstances  which  justified  this 
charge  appear  to  have  been  the  facts  that  the  rents  had 
been  allowed  to  run  in  arrear,  and  that  it  was  through  the 

(m)  Sherwin  v.  Shakspear,  5  De  G.  &  M.       {s)  St.  Leon.  Vend.,  528. 
G.,  517,  particularly  536.  (0  Acland  v.  Gaisford.  2  Mad.,  28. 

(n)  Bridges  V.  Robinson,  3  Mer.,  694.  (u)  See   per  Malins,  V.    U.,  in    Crane   v. 

(0)  M.  Leon.  Vend.,  524.  Kilpin,  L.  R.,  6  Eq  ,  335.    See  too  Bebb  v. 

(p)  Calcraft  v.  Roebuck,  1  Ves.  Jan.,  221.  Bunny,  1  K.  &  J.,  216,  cited  infra,  §  1446. 

(g)  e.  g.  Firth  v.  Midland  Railway  Co.,  L.       (r)  Acland  v.  Gaisford,  2 Mad.,  28;  Piiillip^ 

K.  20  Eq.,  100, 114.  T.  Silvester,  L.  R.  8  Ch.,  173;  Seton,  1305. 

(r)  Burnell  v.  Brown,  IJ.  &  W.,  175. 


INTEREST,    RENTS,    DETERIORATION,    ETC.  645 

vendor's  fault  that  the  purchaser  was  not  able  safely  to 
take  possession. (^/j)  But  in  a  case  where  the  vendor  was 
similarly  charged  by  Lord  Romilly,  M.  R.,  the  judgment 
was  reversed,  on  appeal,  by  Knight  Bruce  and  Turner,  L. 
J.  J.,  who  decided  that,  in  the  absence  of  special  circum- 
stances, the  vendor  will  not  be  charged  with  the  rents  which 
he  might  have  received  without  willful  default,  and  that  he 
will  not  be  subject  to  any  inquiry  unless  there  be  evidence 
that  he  has  in  some  way  acted  otherwise  than  a  prudent 
owner  would  have  done.(ir) 

§  1402.  The  vendor  in  iiossession  is  therefore  not,  as  has 
sometimes  been  said,  in  the  position  of  a  bailiff  at  common 
law  to  the  purchaser ;  for  such  a  bailiff  is  answerable  not 
only  for  his  actual  receipts,  but  for  Avhat  he  might  have 
made  of  the  lands  without  his  willful  default.  (//) 

§  1403.  Inasmuch  as  the  outgoings  of  an  estate  virtually 
represent  the  (or  part  of  the)  difference  between  the  gross 
and  the  net  rents,  and  may  accordingly  be  regarded  as 
included  in  the  former,  the  liability  to  discharge  them  is,  it 
is  conceived,  in  the  absence  of  stipulation,  incident  to  and 
conterminous  with  the  right  to  receive  the  rents.  In  a  case 
where  the  conditions  of  sale  of  leaseholds  stipulated  that 
all  outgoings  up  to  the  day  of  completion  should  be  cleared 
by  the  vendors,  it  was  held  that  an  apportioned  part,  from 
the  quarter-day  last  preceding  to  the  day  for  comi:»letion, 
of  the  current  ground-rent  was  an  outgoing  within  the 
meaning  of  the  condition,  and  must  be  paid  or  allowed  to 
the  purchaser  by  the  vendors. (2:) 

§  1404.  If,  after  the  contract,  and  before  the  purchaser 
takes,  or  ought  to  take,  possession  of  the  estate,  any 
deterioration  take  place  by  the  conduct  of  the  vendor  or  his 
tenants,  he  will  be  accountable  foi'  it  to  the  purchaser. (a) 
"He  is  not  entitled  to  treat  the  estate  as  his  own.  If  he 
willfully  damages  or  injures  it,  he  is  liable  to  the  purchaser ; 
and  more  than  that,  he  is  liable  if  he  does  not  take  reason- 
able care  of  it.(^) 

(w)  Wilson  V.  Claphani,  1  J.  &  W.,  36.  R.,  ir,9;  and  see  further,  as  to  outgoings, 

[x)  Sherwln  v.Sliahspear,  17  Beav.,2G7;  S.  Carrodus  v.  Sharp  (20  Beav.,  56,  58),  cited 

€.  5  De  G   M.  &  G.,  517.    See,  also,  Howell  v.  supra,  §  1380;  Midgley  v.  (Joppock,  40  L.  T., 

Howell,  2  Mj'    &  L'r.,  478,  and  compare  st.  870. 

Leon.  Vend.,  519.  (a)  Foster  v.  Deacon,  3  Mad.,  394.    See  too 

(y)  Co.  Litt.,   172,  a.;   Wheeler  v.   Home,  Counter  v.  Macpherson,  5  Moo.  P.  C.  C,  83, 

Willes,  208.  suura,  §  893. 

(s)  Lawes  v.  Gibson.  L.  R.  1  Eq  ,  135.  Cf.  (6)  Per  Jessel,  M.  R.,  in  Lygaght  v.  Ed- 
Williams  V.  East  London  Railway  Co.,  18  W.  wards,  2  Ch.  D.,  507. 


646        FRY  ON  SPECIFIC  PEKFOKMATs'CE  OF  CONTRACTS. 

§  1405.  Where  a  purchaser  had  paid  liis  nioney  into 
court  under  an  order,  and  he  was  considered  entitled  to  com- 
pensation for  deterioration,  which  had  taken  place  while 
the  vendors  retained  possession,  he  was  allowed  the  amount 
out  of  his  i^urchase-money,  together  with  interest  at  four 
per  cent,  from  the  time  when  he  paid  it  in,  and  the  costs  of 
the  trial  of  an  issue  directed  to  ascertain  the  amount  of 
damage,  (c) 

§  1400.  Again,  where  vendors  insisted  on  continuing  in 
possession  i^ending  certain  disputes  between  themselves 
and  the  purchaser,  and  allowed  the  X)roperty  to  fall  into  a 
state  of  dilapidation,  Lord  Selborne  held  that  the  purchaser 
must  be  allowed  to  set  oif  against  the  interest  payable  by 
him  the  amount  of  rent  which  the  vendors  might,  but  for 
their  willful  neglect  and  default,  have  received,  and  also  the 
amount  of  the  deterioration,  (rZ) 

§  1407.  In  another  case,  where  the  purchaser  (plaintiff) 
alleged  that  tlie  vendors  (defendants)  had  since  the  date  of 
the  contract  let  the  property  (an  oil  mill,  with  tlie  plant  and 
machinery,)  to  third  parties,  and  that  the  plant  was  daily 
being  deteriorated  and  worn  out  by  the  improper  user 
thereof  by  the  defendants'  tenants,  it  was  held  that  the 
plaintiff  was  entitled  to  discovery  from  the  defendants  of 
the  names  of  the  persons  to  whom,  and  the  term  for 
which,  the  property  had  been  let.(e) 

§  1408.  The  vendor's  accountability  for  deterioration 
arises  out  of  his  constructive  trusteeship(/)  for  the  pur- 
chaser. Therefore,  if  the  vendor  of  a  farm  subject  to  a 
yearly  tenancy  linds  and  knows,  before  the  day  for  com- 
pletion arrives,  that  it  will  be  impossible  to  complete  on 
that  day,  and  that  the  tenancy  will  determine  before  actual 
completion,  then,  inasmuch  as  it  is  his  duty,  as  a  trustee 
for  the  purchaser,  to  keep  the  property  in  a  projier  state  of 
cultivation,  he  ought  to  relet  it  on  a  yearly  tenancy  ;  unless 
the  purchaser,  being  asked  what  he  wishes  to  be  done,  is 
willing  to  run  the  risk  of  it  being  unlet,  and  Avill  guarantee 
the  vendor  against  any  loss  that  may  arise  to  him  in  case 
the  purchase  goes  oS.{g) 

§  1409.  In  a  case  that  came  before  the  privy  council,  the 

(c)  Fersuson  v.  Ta(5man,  1  Sim.,  530.  (/)  See  supra,  §  1368. 

(d)  Phillips  V.  Silvester,  L.  R.  8  Ch.,  173.  (g)  Earl  ol  Egmont  v.  Smith,  6  Ch.  D.,  46&, 

(e)  Dixon  v.  Eraser,  L.  B.  2  Eq.,  497.  475. 


INTEREST,    KENTS,    DETERIORATION,    ETC.  647 

vendor  of  a  coal  mine,  having,  during  delay  of  completion, 
worked  the  mine  for  liis  OAvn  benetit,  was  held  bound  to 
pay  the  purchaser  the  value  in  situ  naturali  of  the  coal 
taken,  i.  e.  its  market  value  at  the  place  where  it  was  to  be 
sold,  less  the  costs  of  severing  it  and  taking  it  from  the 
mine  to  that  place. (7^) 

§  1410.  On  the  other  hand,  the  purchaser  Avill  have  to 
bear  the  loss  from  deterioration  in  the  following  cases  : 
First,  where  it  occurs  after  the  time  at  which  he  ought  to 
have  taken  i)ossession.(/) 

§  1411.  Secondly,  where  it  occurs  during  the  period  in 
which  the  vendor  is  in  j^ossession,  but  is  the  result  of 
accident,  without  the  fault  of  the  vendor:  so  tliat  where 
during  this  period  the  vendor  was,  in  consequence  of  such 
an  accident,  compelled  to  expend  money  on  or  in  respect  of 
the  property,  as  in  shoring  it  up,  or  removing  rubbish 
which  had  fallen  on  a  neighbors  property,  the  vendor  was 
held  entitled  to  have  this  repaid  by  the  x^urchaser :  but  the 
court  refused  to  make  the  purchaser  pay  the  expenses  of  a 
reference  to  the  master  in  relation  to  the  repairs,  though 
that  had  been  proper  for  the  protection  of  the  trustees  of 
the  estate.  (,/) 

§  1412.  Thirdly,  where  the  deterioration  is  due  to  the 
purchaser  himself,  the  loss  mast  fall  on  him  though  not 
in  possession.  Thus,  where  a  purchaser  agreed  with  a  ten- 
ant of  the  estate  that  he  should  give  up  possession  if  the 
purchaser  had  a  conveyance  by  a  certain  time,  and  the  ten- 
ant, misconstruing  the  agreement,  gave  up  possession 
though  the  purchaser  had  not  the  conveyance  ;  the  pur- 
chaser was  held  to  be  the  innocent  cause  of  the  mischief, 
and  so  responsible  for  the  deterioration  which  resulted.  (A:) 

§  1413.  The  cases  which  arise  where  the  vendor  is  him- 
self in  personal  occupation  of  the  estate  correspond  with 
those  where  he  is  in  receipt  of  the  rents,  except  that,  in- 
stead of  having  to  pay  over  the  rents  received  from  others, 
he  will  have  to  pay  to  the  purchaser  an  occupation  rent  to 
be  set  upon  the  estate,  himself  receiving  interest  in  return. (Z) 

§  1414.  In  a  recent  case,  the  contract  having  stipulated 

(t)  Brown  v.  Dibbs,  25  W.  R  ,  776,  lollowing        (,/)  Robertson  t.  Skelton,  V2  Beav.,  360. 
the  principle  of  Jegon  v.  Vivian,  L.  R  6  Ch.,        ik)  Harford  v.  Furrier,  1  Mad.,  532. 
742.  (I)  Dyer  v.  Hargrave,  10  Vts.,  505. 

(t)  Binks  V.  Lord  Rokeby,  2  Sw.,  222;  Min- 
chin  V.  Nann,  4  Beav.,  332. 


648        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

tliat,  from  the  clay  named  for  completion,  tlie  purchaser 
should  receive  "all  rents  and  prolits,"  the  vendors,  remain- 
ing in  occupation  of  the  property  after  that  day,  were  held 
bound  to  pay  a  fair  occupation  rent 'for  the  interval  which 
elapsed  before  the  purchase  was  completed.  (???-) 

§  1415.  No  such  occupation  rent,  however,  will  be 
allowed  where  the  purchaser  ought  under  the  contract  to 
have  taken  possession,  and  the  vendor  has  continued  in  pos- 
session, onlj'-  by  reason  of  the  purchaser's  wrongdoing. (?i) 

§  1416.  Thus  where  the  property  (a  tavern),  was  occu- 
pied by  the  vendor,  a  licensed  victualler,  for  the  purposes  of 
his  business,  and  the  purchasers  a  railway  company,  having 
made  default  in  payment  of  the  purchase-money  on  the  day 
named  for  completion,  the  vendor  continued  the  business 
on  his  own  behalf,  but  under  great  inconvenience,  all  his 
arrangements  having  necessarily  to  be  made  subject  to  de- 
termination on  payment  of  the  purchase-money,  it  was  held 
that  the  purchasers  were  not  entitled  to  any  allowance  by 
way  of  occupation  rent.(o) 

§  1417.  AVhere  the  court  fixes  an  occupation  rent  to  be 
paid  by  the  vendor,  he  will,  it  seems,  be  allowed  to  deduct 
the  income  tax  on  it  as  a  "just  allowance  ;"  but  the  court 
will  not  insert  any  express  provision  on  the  x>oint  in  the 
judgment.  (7>)' 

.  (2)    W//ere  tlie  ijurcliaser  is  in  possession.'' 

§  1418.  It  follows  from  the  principles  already  stated  and 
discussed  in  this  chapter  that  generally,  in  the  absence  of 

(m)  Metropolitan  Railway  Co.  V.  Defries,  2  (o)  Leggott  v.  Metropolitan  Bail  way  Co., 
Q.  B.  D.,  189;  affirmed,  id.,3J<7  L.  R.  5Ch.,716 

(n)  Dakiu  v.  Cope,  2  Russ..  170, 181.  (p)  Sherwin  v.  Shakspear,  5  De  G.  M.  & 

G.,  517,  532. 

'  Thomas  v.  Thomas,  1  Bibb.,  219,  is  not  an  inapplicable  case.  B.,  there, 
agreed  to  surrender  fiftj'  acres  of  land  to  A.,  upon  the  conveyance  from  A.  to 
B.  of  250  acres.  A.  conveyed  the  250  acres,  but  B.  refused  to  give  up  the  fifty 
acres.  A.  brought  ejectment;  B.  his  bill  for  an  injunction.  Ileld,  that  B.  had 
no  longer  any  claim  to  the  fifty  acres;  and  that  an  account  of  the  rents  and 
profitsfrom  the  time  of  the  commencement  of  the  ejectment  should  be  taken, 
and  set  off  against  the  value  of  the  improvements  made  by  B. ;  it  appearing 
that  bv  agreement,  all  improvements  were  to  be  paid  for.  See  Dike  v.  Greene, 
4  R.  l!,  2.^5. 

-  Purchasers  in  possession  will  be  holden  to  pay  interest,  but  will  not  be  held 
liable  for  mesne  profits.  Portland  v.  ^Miller,  3  Hawks,  (328;  McKay  v.  Melvin, 
1  Ired.'s  Ch.,  73;  Rutledge  v.  Smith,  1  McCord's  Ch.,  399;  Liddell  v.  Rucker, 
13  La.  An.,  569;  Bryant  v.  Booth,  30  Ala.,  311 ;  Stevenson  v.  Maxwell,  2  Sandf.'s 
Ch.,  273;  2  Comst.,  408;  Seldon  v.  James,  fi  Rand.,  465;  Sebree  v.  Harper,  4 
Dana,  66;  Oliver  v.  Hallam,  1  Gratt  (Va.),298;  see  Irick  v.  Fulton,  3  id.,  193; 


INTEREST,    RENTS,    DETERIORATION,    ETC.  649 

stipulation,  a  purcliaser  in  possession  of  the  estate  which  is 
the  subject  matter  of  the  contract  must  pay  interest  on  the 
unpaid  jDurchase-money  from  the  time  when  his  possession 
under  the  contract  commenced  until  completion.  (^) 

§  1419.  The  rule  that  the  purchaser  in  p)ossession  shall 
pay  interest  on  the  unpaid  part  of  the  j)urchase-money  will 
be  applied  even  in  cases  where  the  delay  arises  from  the  ne- 
glect of  the  vendor,  and  the  purchaser  makes  no  actual 
profit  out  of  the  land,(r)  "The  act  of  taking  possession," 
.said  Grant,  M.  R.,  "is  an  applied  agreement  to  pay  inter- 
est :  for  so  absurd  an  agreement  as  that  a  purchaser  is  to 
receive  the  rents  and  profits  to  which  he  has  no  legal  title, 
and  the  vendor  is  not  to  have  interest,  as  he  has  no  legal 
title  to  the  money,  can  never  be  implied." (5) 

§  14»20.  Accordingly  where  a  purchase  was  to  be  com- 
pleted by  a  given  day,  when  the  purchaser  Avas  to  have 
possession,  and  it  was  jorovided  that,  if  from  any  cause 
whatever  the  j)urchase-money  should  not  be  then  paid,  the 
purchaser  should  pay  interest,  and  a  delay  of  six  months 
was  occasioned,  but  innocently,  by  the  vendor  in  not 
delivering  i:)roper  abstracts,  he  was  put  to  his  election  to 

(q)  See  Supra,  §  1372;  and  Fhulverv.  Cock-  (?■)  Fludyer  v.  Cocker,  12  Ves.,  25;  Ballard 

er,  12  Ves  ,  27;  Binks  v.  Lord  Rolieby,  2  Sw.,  v.  Shutt.  15  Ch  D.,  122. 

226;  Neath  New  Gas  Co.  v  Gwyn,  W.  N.,  (s)  Fludyer  v  Cocker,  12  Ves  ,  27,  28. 
1873,  200;  Ballard  v.  Shutt,  15  Ch.  D.,  122. 

Walker  v.  Ogden,  1  Dana,  247.  The  fact  that  delay  is  caused  by  the  neglect 
of  the  vendor  is  likewise  held  here  not  to  alter  the  case.  Brockenburgh  v. 
Blyth,  3  Leigh,  619.  And  interest  will  be  charged  upon  a  purchaser,  although 
the  vendor  has  bound  himself  to  make  a  good  title  before  calling  for  the  pur- 
chase money.  Oliver  v.  Hallam,  1  Gratt.  'Va.),  298,  But  a  tender  of  the 
money  will  exonerate  the  vendee  from  the  payment  of  interest;  and  on  a  bill 
for  a  specific  performance,  he  will  be  obliged  to  accept  withcjut  interest.  Janu- 
ary V.  Martin,  1  Bibb,  586.  And,  again,  where  the  purchaser  of  land  was  pre- 
vented from  improving  it  by  reason  of  a  suit  against  the  vendor  to  recover  the 
land,  the  court  refused  to  charge  the  purchaser  with  interest  upon  the  purchase 
money  pending  the  suit  at  law%  though  it  was  agreed  between  the  vendor  and 
purchaser  that  the  improvements  should  be  at  the  risk  of  the  purchaser,  in  case 
the  title  should  be  questioned.  Wightman  v.  Reside,  2  Dessau.,  578.  But  in 
cases  of  this  kind,  where  there  has  been  no  injury  done  to  ihe  vendee  in  the 
hindrance  of  improvements,  and  the  adverse  title"  is  ultimately  defeated,  the 
vendee  must  pay  interest.  Nor  is  it  suthcient,  to  excuse  the  payment  of  interest 
in  such  a  case,  that  the  vendee  has  been  willing  and  ready  to  pay  the  princijial 
during  the  time  of  litigation,  unless  it  appear  that  the  money  laj'  uselessly  by 
him,  and  unproductive,  and  that  he  gave  notice  to  the  vendor  that  it  was  so 
unproductive.  Selden  v.  James,  6  Rand.,  465;  Breckenridge  v.  Hoke,  4  Bibb, 
272 ;  see  Rutledge  v.  Smith,  1  Mc(.;ord's  Ch  ,  399.  In  regard  to  delay  occa- 
sioned by  the  vendor,  a  distinction  has  been  taken  between  sales  of  productive 
and  unproductive  property.  Where  the  land  is  vacant,  and  consequently  yields 
no  rents  of  profits,  it  has  been  said  that  a  purchaser,  although  in  po.ssession, 
shall  not  pay  interest,     Stevenson  v.  Maxwell,  2  Sandf.'s  Ch  ,  273. 


650        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

pay  interest  or  give  up  rents,  though  notice  had  been  given 
by  the  purchaser  that  the  money  was  lying  idle.(^) 

§  14»31.  In  a  case  decided  by  Lord  Rom  illy,  M.  R.,  the 
contract  provided  that  the  purchasers  should  i)ay  interest 
on  the  purchase-money  nt  four  per  cent  from  the  time  of 
their  taking  possession  until  the  1st  of  July,  1858  (the  day 
for  completion),  at  five  per  cent  from  the  last  mentioned 
date  until  the  1st  of  January,  1859,  and  afterwards  at  eight 
per  cent  until  payment,  with  a  proviso  that  the  purchasers 
should  not  ])e  entitled  to  withhold  payment  of  the  purchase- 
money  upon  paying  interest  at  the  higher  rates.  The  pur- 
chasers took  possession  before  the  end  of  1857,  but'  without 
any  misconduct  on  the  vendors'  part,  comyJetion  did  not 
take  place  until  1865.  His  lordship  held  that  the  stipula- 
tion for  the  payment  of  interest  at  the  rate  of  eight  per 
cent  was  a  separate  and  distinct  contract  which  the  pur- 
chasers were  bound  to  perform,  and  not  as  they  contended, 
in  the  nature  of  a  penalty  to  secure  the  completion  of  the 
purchase  within  a  reasonable  timii.{u)  The  case  well 
illustrates  the  principle  that  stipulations  of  this  kind  will 
have  effect  given  to  them  according  to  their  natural  mean- 
ing. (?)) 

§  1423.  Again  where  a  purchaser  under  a  decree  ac- 
cejDted  possession,  and  on  a  report  of  an  objection  returned 
possession,  he  was  ordered  to  pay  interest  from  time  to  time 
at  which  he  took  possession,  or  at  which  a  title  was  shown 
under  which  he  might  safely  have  done  so,  and  even  for  the 
time  during  which  he  returned  the  possession.  (?o) 

§  14*23.  But  where  a  purchaser  had  l)een  let  into  pos- 
session at  the  intended  time  for  completion,  and  afterwards, 
difficulties  having  without  any  fault  on  his  xmrt  arisen  to 
delay  completion,  paid  the  purchase-money  into  a  separate 
account  at  a  bank,  and  gave  notice  to  the  vendors  that  the 
money  was  appropriated  to  the  purposes  of  the  contract, 
and  that  he  was  ready  to  complete  ;  Lord  Romilly,  M.  R., 
held  that  he  w^as  not  chargable  with  interest  after  the  date 
of  his  notice,  but  must  pay  to  the  vendors  any  interest  he 
had  received  from  the  bank  in  respect  of  the  sum  paid  in.(ir) 

(t)  Cowpe  V.  Bakewell,  13  Beav,  421.  (w)  Binks  v.  I.oril  Rokeby,  2  Sw.,  222.    See 

(w)  Berber'  v.  Salisbury  and  Yeovil  Rail-    alf^o  Att  -Gen.  v.  Cliristchurch,  13  Sim.,  214. 

way  Co.,  L.  B  2  Eq.,  221.  (x)  Kershaw  v.  Kerehaw,  L   R.  9  Eq.,  56. 

(V)  See  supra,  §  1389.  Distinguisti  iJicKenson  v.  Heron,  St.  Leon. 

Vend.,  516. 


INTEREST,    RENTS,    DETERIORATION,    ETC.  651 

§  1424.  For  where  the  pn^haser  in  possession  makes 
any  profit  on  any  part  of  the  appropriated  purchase-money, 
he  is  discharged  from  the  payment  of  interest  only  in  re- 
spect of   the  purcliase-money  on  which  he  has   made  no 
interest.     Thus  where  a  purchaser,  on  entering  into  posses- 
sion, paid  the  money  into  his  banker's,  and  gave  the  vendor 
notice  that  he  was  ready  to  invest  in  such  manner -as  the 
vendor  shonkl  require  ;  and  during  the  investigation  of  the 
title  kept  a  balance  at  his  banker's  equal  to  the  purchase- 
money,   except  on  four  days,   when  it  was  a  little  less ; 
Leach,  V.  C,  said  it  was  clear  that  the  purchaser  had  made 
some  profit  with  the  money,  '^  first,  because  his  balance  was 
in  a  small  degree  and  for  a  few  days  reduced  below  the 
amount  of  the  purchase-money,  but  principally  because  the 
purchase-money  supplied  the  place  of  that  balance  which 
lie  must  otherwise  have  maintained  at  his  banker's:"  he 
therefore  directed  an   inquiry  as   to  the  average   balance 
which  the  purchaser  had  maintained  at  his  broker's  for  the 
three  years  preceding  the  purchase,  and  the  average  balance 
during  the  period  of  the  investigation  of  the  title,  and  de- 
clared that  in  respect  of  the  difl'erence  between  those  balan- 
ces he  was  not  chargeable  with  interest  on  his  purchase- 
money.  (^) 

§  1435.  8o  strongly  does  the  court  hold  to  this  principle, 
that  a  purchaser  in  possession  shall  pay  interest  on  the  un- 
paid purchase-money,  that  it  will  look  at  any  contract 
which  appears  to  i)revent  the  application  of  this  rule  by  the 
light  of  this  general  principle  of  justice,  and,  it  seems,  re- 
fuse execution  of  it  where  it  grossly  violates  this  principle  : 
for  "a  court  of  equity  interposes  only  according  to  con- 
science." (2") 

§  1426.  So  that  where  a  contract  stipulated  that  the 
interest  on  the  remainder  of  the  purchase-money  should  not 
commence  till  lady-day  next,  in  case  the  title  should  be 
perfected  and  the  assurances  executed  at  that  time  ;  and  if 
not,  then  should  commence  on  the  execution  of  such  assur- 
ances ;  and  the  purchaser  was  let  into  possession  under  a 
stipulation  in  the  contract  to  that  effect,  but  the  assurances 
were  not  executed  for  forty  years  ;  the  House  of  Lords  held 

{y)  Winter  V.  Blades,  2  S.  &  S.,  393.    Lord       (2)  Per  Lord  St.  Leonards  in  Birch  v.  Joy, 
St.  Leonards  doubted  the  correctness  of  this    3  H.  L.  C,  59S. 
decision.    St.  Leon.  Vend.,  514. 


*652        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

that  the  purchaser's  exemption  from  interest,  though  per- 
missible if  the  contract  had  been  speedily  executed,  would 
not,  under  such  circumstances  and  with  such  length  of  time, 
be  enforced  by  the  court  of  equity. (a) 

§  1427.  In  a  recent  Irish  case,  the  purchaser,  who  had 
been  allowed  to  go  into  possession  without  paying  the  pur- 
■chase-money,  and  had  afterwards  been  forcibly  dispossessed, 
sued  for  specific  performance  and  damages.  He  was  charged 
with  interest  for  the  period  during  which  he  was  in  posses- 
sion, and,  as  from  the  time  when  the  vendor  retook  pos- 
session, interest  was  not  charged  against  the  purchaser  nor 
the  rents  against  the  vendor ;  and  no  damages  were  given.  (&) 

§  1428.  Where  a  corporation,  acting  under  some  special 
act  of  Parliament  incorporating  the  lauds  clauses  act,  1845, 
takes  possession  of  land  by  virtue  of  its  statutory  powers 
before  the  price  had  been  ascertained,  the  vendor  is  gener- 
ally entitled  to  interest  on  the  purchase  or  compensation 
moneys  from  the  date  of  the  taking  possession,  (c) 

§  1429.  But  in  a  case  where  a  local  board  compulsorily 
purchased  lands  which  were  subject  to  tenancies,  and  the 
price  of  the  landlords'  [vendors']  interest  was  ascertained 
by  the  verdict  of  a  jury,  the  court  held  that  interest  was 
payable  by  the  purchasers  from  the  day  of  the  verdict,  not- 
withstanding that  they  could  not  and  did  not  obtain  actual 
possession  of  the  property  for  sometime  afterwards  ;  but  it^ 
was  at  the  same  time  held  that,  it*  the  vendors  had  received 
any  rents  since  the  verdict,  the  amount  of  those  rents  would 
be  deducted  from  the  interest.  (tZ) 

§  1430.  In  one  case,  where  the  jjurchaser  had  been  let 
into  possession  under  the  contract,  and  objected  to  the  title, 
he  was  allowed  to  remain  in  possession  on  payment  of  an 
occupation  rent :  but  the  case  seems  to  have  been  one  of 
arrangement,  not  of  strict  right,  (e) 

§  1431.  In  sales  of  reversionary  estates,  the  purchaser 
cannot,  of  course,  be  let  into  actual  possession  or  receipt  of 
the  profits  of  the  estate  purchased.  It  becomes,  therefore, 
necessary  to  inquire  from  what  period  he  is  to  be  treated  as 
if  he  were  in  possession,  so  as  to  render  him  liable  to  the 

(a)  Birch  v.  Joy,  3  H.  L.  C  ,  .%">.  (d)  Re  Eccleshill  Local  Board,  13  Ch.  D., 

(6)  .Johnston  v.  .Johnston,  I.  R  3  Eq.,  328.  365.    Cf.  Catling  v.  Great  Northern  Railway 

(c)  Rhvs  V.Dare  Valley  Railway  Co.,  L  R.  Co.,  18  W.  R.,  l-JI;  21  L.  T.  N.  S.,  17. 

19  Eq  ,  93;  Firth  v.  Midlami  Railway  Co  ,  L.        («)  Smith  v.  Lloyd,  1  Mad  ,  83;  d.  C.  s.  n. 

H.  21)  Eq.,  100.  Smith  v.  Jackson  and  Lloyd,  1  Mad.,  618. 


IISrTEREST,    RENTS,    DETERIORATION,    ETC.  653 

payment  of  interest  on  liis  uni^aid  purchase-money  :  for  the 
wearing  away  of  the  lives,  or  of  the  time  after  which  the 
reversion  will  vest  in  possession,  is  justly  considered 
equivalent  to  possession,  and  as  creating  in  the  purchaser  a 
liability  to  pay  interest.  (/') 

§  1433.  The  purchaser  of  such  an  estate  pays  interest 
from  the  time  at  which  he  became  by  law  entitled  to  receive 
the  rents,  (r/)  which  is  prlmd  facie  the  time  fixed  for  com- 
pletion of  the  contract  \{h)  or,  where  the  contract  specifies 
no  time  for  completion,  the  time  at  which  a  good  title  was- 
first  shown  or  the  title  was  accepted.  (/)  This  may  of  course 
be  modified  by  contract :  so  where  the  contract  stipulated 
that  the  rents  should  belong  to  the  purchaser  only  from  the 
time  the  contract  was  comjoleted,  the  vendor  was  held  not 
entitled  to  claim  interest  on  the  unpaid  part  of  the  purchase- 
money.  (/) 

§  143S.  In  cases  of  sales  of  reversions  under  the  court, 
interest  will,  it  seems,  run  from  the  time  when  the  chief 
clerk's  certificate  of  the  result  of  the  sale  becomes  bind- 
ing. {Jc)  But  where  a  time  is  specified  at  which  the  money 
ought  to  be  paid  into  court,  that,  and  not  the  confirmation 
of  the  sale,  will,  it  appears,  be  the  time  from  which  interest 
run  ;  as  in  the  case  of  an  estate  in  possession  that  would  be 
the  time  at  which  a  purchaser  would  be  entitled  to  enter 
into  the  receipt  of  the  rents.  So  where  the  25th  of  De- 
cember, 1849.  was  appointed  for  the  payment  of  the  money 
into  court,  but  the  abstract  was  delivered  in  September, 
1851,  and  a  good  title  w^as  not  made  out  till  March,  1852, 
interest  was  directed  to  ])e  paid  from  the  25th  December, 
1849.  (Z) 

§  1434.  Possession  of  the  estate  and  of  the  purchase- 
money  being,  as  we  have  seen,(m)  mutually  exclusive,  the 
vendor  is  generally  entitled  to  call  on  a  purchaser  in  pos- 
session to  pay  the  purchase-money  into  court. 

§  1435.  Where  the  purchaser  is  in  x^ossession,  and  the 

(/)  See,  in  addition  to  the  subsequent  cases,  date  of  the  report  of  good  title;    and  see 

Davy  V.  Barber,  i  Atk.,  4t^9;  Robertshaw  v.  supra,  §  1375. 

Bray,  14  L,.  T.,  101,  12  Jur.,  iii.  (J)  Broolie  v.  Champernowne,  4  01.  &  Fin  , 

ig)  Champernowne  v.  Brooke,  3  CI.  &  Fin..  589;  and  see  Weddall  v.  Nixon.  17  Beav.,  160. 

4  (overruling  Blonnt  v.  Blount,  3  Atk.,  636).  (k)  Ex  parte  Manning,  2  P.  Wras.,  410.    (  f. 

(h)  Bailey  v.  Collett,  18  Beav.,  179;  Wallis  Seton,1397, 139S;  Dart,  Vend.  (.5th  ed),  1200. 

V.  Sarel.  5  De  G.  &  Sm.,  429;  Davy  V.  Barber,  See,  also,  Child  v.  Lord  Abingdon,  1  Ves, 

2  Atk.,  489;  Owen  v.  Davies,  3  Atk.,  637.  Jun.,  94;  Trefusis  v.  LordClinton,2  Sim., 359. 

(j)  Enraght  v.  Fitzgerald,  2  Dr.  &  War.,  43,  ([)  VVaUis  v.  Sarel,  5  De  G.  &  Sm.,  429. 

reversing  Lord  Plunkett's  decision  S.  C.  2  Ir.  (w)  Supra,  §  1372. 
Eq.  R.,  87,  that  interest  should  run  from  the 


654        FRY  ON  SPECIFIC  PEKFOUMAXCE  OF  CONTRACTS. 

vendor  lias  disclosed  sucli  a  title  as  the  purchaser  ought  to 
accept,  the  vendor's  right  thus  to  i)roceed  is  clear.  And 
the  court  will  pursue  this  course  where  the  purchaser  in 
possession  admits  a  good  title,  though  he  may  claim  the 
right  to  object,  it  not  having  been  approved  by  counsel. (7i) 

§  14:t0.  On  the  other  hand  it  is  a  general  rule,  that 
where  it  is  through  the  laches  of  the  vendor  that  the  title 
remains  incomx)lete,  the  court  will  refuse  an  application  for 
the  payment  of  the  purchase-money  into  court. (o) 

§  1437.  But  wliere  the  want  of  a  good  title  being  shown 
is  not  from  the  default  of  the  vendor,  the  court  will,  it 
seems,  put  the  purchaser  tb  his  election,  either  to  pay  in 
his  purchase-money  or  to  give  up  possession. 

§  1438.  Thus,  in  a  case  before  Lord  Eldon,  where  the 
purchaser  was  let  into  possession,  both  parties  acting  in  the 
confidence  that  the  title  would  soon  be  made  out,  and  that 
confidence  was  "not  (to  use  his  lordship's  words)  made 
good,  and  that  was  a  surprise  upon  both,"  his  lordship 
expressed  the  opinion  that  the  purchaser  should  be  put 
to  his  election,  either  to  give  ujd  possession  or  to  pay  the 
money  into  court :  but  on  a  subsequent  day  his  lordship 
said  only  that  the  purchaser  ought,  at  least,  to  i^ay  interest 
on  his  purchase-money ;  and  the  point  was  ultimately 
settled  by  agreement  detween  the  j)arties.(jf>)  And  not- 
withstanding some  doubts  cast  upon  the  wisdom  of  this 
judgment  in  a  subsequent  case  by  Plumer,  V.  C,  who  con- 
sidered it  to  be  "the  imprudence  of  the  vendor  in  letting 
the  vendee  into  jDossession  before  the  questions  upon  the 
title  were  disposed  of,  "(g)  the  court  will  generally  put  a 
purchaser  in  j)ossession,  where  the  title  has  not  been  made 
out,  to  his  election,  either  to  pay  in  the  purchase-money  or 
to  give  wp  possession  ;(r)  and  the  court  did  so  in  one  case 
where  it  was  part  of  the  contract  that  £5,000,  j)art  of  the 
purchase-money  (£6,300),  should  be  secured  by  a  mortgage 
of  the  estate.  (5)    In  such  cases(^)  two  months,  and  in  an- 

f  (11)  Crutchley  v.  Jernlngham,2  Mer.,  502.  See  also  King  v.  King  1  My.  &  K.,  442;  and 
(o)  Fox  V.  Birch,  1  Mer.,  Id").  Curling  v.  Austin,  2  Dr.  &  Sm.,  129,  139  (in 
i  Ip)  Gibson  v.  Clarke,  1  V.  &  B.,  500.  which  case  the  purchaser  had  been  in  pos- 
[  (q)  Clarke  v.  Elliott,  1  Mad.,  607.  session  without  receipt  of  the  rents.) 
(r)  Clarke  v.  Wilson,  15  Ves.,  317;  Smith  v.  (s)  Vonnge  v.  Duncombe,  You.  275. 
Lloyd,  1  Mad.,  S3;  Wickham  v.  Evered,  4  (/)  Younge  v.  Duncombe,  Tindal  v.  Cob- 
Mad.,  53;  Tindal  V.  Cobham,  2  My.  &  K.,  3S5.  ham,  Curling  v.  Austin,  ubi  supra. 


INTEREST,    RENTS,    DETERIORATION,    ETC.  655 

other(z^)  one  month,  having  been  allowed  the  purchaser  to 
elect  whether  of  the  alternatives  to  accej^t. 

^  1439.  Where  the  contract  allows  possession  to  be  taken 
before  the  completion  of  the  title,  the  court  will  not  gener- 
ally order  the  payment  of  the  purchase-money  into  court 
on  the  score  of  possession.  (?)) 

§  1440.  Thus,  where  by  the  contract  the  purchasers,  a 
railway  company,  were  to  be  at  liberty  to  take  x)ossession 
on  depositing  a  specified  sum  of  money  in  a  bank,  and 
they  duly  made  the  deposit  and  entered  into  possession  of 
the  land  and  made  their  railway  over  it,  though  they  after- 
wards for  a  long  time  neglected  to  complete,  the  Court  of 
Appeal  in  Chancery  held  that  the  vendor  was  not  entitled, 
on  interlocutory  motion,  to  have  the  purchase-money  jmid 
into  court,  (w)) 

§  1441.  But  in  another  raihvay  case,  where  the  purchas- 
ing comjDany  were  by  the  contract  allowed  to  take  posses- 
sion, but  the  contract  also  contained  a  clause  providing  that 
the  vendors  should  nevertheless  retain  their  lien  for  the  un- 
paid purchase-money,  and  all  rights  and  remedies  incident 
to  such  lien,  Kindersley,  Y.  C,  held  that  the  fact  of  the 
company  having  been  let  into  possession  did  not  prevent 
the  vendors  from  applying  to  have  either  payment  into 
court  of  the  unpaid  balance  of  the  purchase-money  or  de- 
livery np  of  X)ossession,  and  he  ordered  such  paj^ment  or 
delivery  to  be  made  within  a  month,  on  the  terms,  however, 
that  if  possession  were  delivered  up,  the  vendors  should, 
within  a  fortnight  after  such  delivery,  pay  into  court  the 
instalment  of  the  purchase-money  which  they  had  already 
received,  (a?) 

§  144:3.  If  the  purchaser  hai^pens  to  be  in  j)ossession 
under  some  other  title  than  the  contract,  this  is  a  circum- 
stance against  calling  for  the  j)ayment  of  the  purchase- 
money  into  court ;  as  where  the  purchaser  was  in  possession 
not  under  the  contract  for  sale,  but  as  tenant  to  the  vendor 
at  the  time  of  the  purchase  \{y)  and  where  the  purchaser  was 

(m)  Wickham  v.  Evered,  ubi  supra.  bury  Junction  Railway  Co.,  L.  K.  2  Co.  100, 
\v)  Morgan  v.  s(haw,  2  Mer  ,  138;  Gibson  v.  102;  Capps  v.  Norwich  and  Spaulding  Rail- 
Clarke,  1  V.   &  B,500;  Gell  V.  Watson,  3  way  Co.,  2  N.  R  ,51,  where  Kindersley,  V.  C. 
Mad.,  225.  seems  to  have  considered  that  the  company 
(w)  Pryse  v.  Cambrian  Railway  Co.,  L.  R.  had  bought  the  right  to  possession  by  pay- 
2Ch.,444.    Consider  Tonilinson  V.  Manches-  ing  part  ot  the  price. 

ter  and  Birmingham  Railway  Co.,  2  Rail.  C,  (x)  Cooper  v.  London,  Chatham  and  Dover 

104  (where  theacts  relied  on  were  done  under  Railway  Co.,  14  W   R.,  0S5 

a  mistake);  Pell  v.  Korthampton  and  Ban-  (y)  Bonner  v.  Johnston,  1  Mer.,  36G. 


656        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

a  tenant  in  common  with  the  vendor,  and  liad  with  his  con- 
sent been  in  receipt  of  the  rents  of  the  whole.  (2)' 

§  1443.  In  a  case  Avhere  the  contract  of  which  the  plain- 
tiff sought  specific  performance  was  that,  when  a  house  of 
the  plaintiff  should  be  completed,  he  would  grant  to  the 
defendant  and  the  defendant  would  accept  a  lease  of  it  for 
twenty-one  years,  and  the  defendant  took  possession  of  the 
house  before  it  was  completed,  and  occupied  it  for  a  year, 
but  refused  to  pay  rent ;  a  motion  by  the  plaintiff  that  the 
defendant  should  be  ordered  to  pay  the  year's  rent  into 
court  was  refused,  on  the  ground  that  the  money  asked  for 
was  no  part  of  the  contract,  nor  w^as  the  defendant  in  i)os- 
session  under  it.(«) 

§  1444.  Where  the  mere  taking  possession  of  the  property 
does  not  furnish  any  ground  for  ordering  the  i)ayment  of 
the  money  into  court,  the  order  will  yet  be  made,  and  with- 
out giving  the  option  of  delivering  u^)  possession,  where  the 
purchaser  in  possession  commits  acts  of  ownership,  par- 
ticularly acts  occasioning  the  deterioration  of  the  property  ;(6) 
and  this,  even  though  the  title  may  not  have  been  made 
out,(c)  or  the  purchaser  may  be  in  possession  according  to 
the  terms  of  his  contract. (<:?)  The  ground  of  this  proceed- 
ing is  that  by  such  acts  the  purchaser  is  altering  the 

(z)  Freebody  v.  Parry,  Coop.  91;  cf.  Walt-       (6)  Pope  v.  Great  Eastern  Railway  Co.,  L. 

ers  V.  Upton,  Coop.  9-2,  n.,  which  appears  to  R.  3  Eq.,  171. 

depend  on  the  circumstances  stated  by  Sir       (c)  Bonner  v.  Johnson,  1  Mer.,  366. 
Samuel  Romilly,  arguendo,  in  the  case  to        (rf)  Dixon  v.  Astley,  19  Ves.,  564;  S.  C,  1 

which  it  is  a  note.  Mer.,  133,  378,  n. 

(a)  Faulkner  v.  Llewellin,  31  L.  J.  Ch.,  549. 

'  Tenants  in  common,  or  joint  tenants.']  "  "Where  two  devisees  are  in  posses- 
sion, under  an  imperfect  title  derived  fi'om  their  common  ancester,  there  would 
seem  naturally  and  equitably  to  arise  an  obligation  between  them,  resulting 
from  their  joint  claims  and  community  of  interest,  that  one  of  them  should  not 
effect  the  claim  to  the  prejudice  of  the  other.  It  is  not  consistent  with  good 
faith,  nor  with  duty  which  the  connection  of  the  parties  as  the  claimants  of  a 
common  subject  created,  that  one  of  them  should  be  able,  without  the  consent 
of  the  other,  to  buy  in  an  outstanding  title  and  appropriate  the  whole  subject 
to  himself  and  thus  und(ji"mine  and  oust  his  companion.  It  would  be  repug- 
nant to  a  sence  of  refined  and  accurate  justice.  It  would  be  immoral,  because 
it  would  be  against  the  reciprocal  obligations  to  do  nothing  to  the  prejudice  of 
each  others  equal  claim  which  the  relationship  of  the  parties  as  joint  devisees 
created.  Community  of  interest  produces  a  community  of  duty,  and  there  is 
no  real  difference  on  the  ground  of  policy  and  justice,  whether  one  co-tenant 
buys  up  an  outstanding  incumbrance  or  an  adverse  title  to  dissuage  and  expel 
his  co-tenant.  It  cannot  be  tolerated  when  applied  to  a  common  subject  in 
which  the  parties  had  equal  concern,  and  which  created  a  moral  obligation  to 
deal  candidly  and  benevolently  with  each  other,  and  to  create  no  harm  to  their 
joint  interest."  Kent,  Ch.,  in  Home  v.  Fonda,  5  John. 's  Ch.,  388,  407;  see, 
also,  Carter  v.  Home,  1  Eq.  Abr.  (7  PL),  13;  Fawcett  v.  Whitehouse,  1  R.  & 
M.,  132;  Barton  v.  Wookey,  6  Mad.,  367. 


INTEREST,    RETs'TS,    DETERIORATION,    ETC.  657 

property  wliicli  constitutes  the  security  of  the  vendor  for 
his  purchase-money,  and  diminishing  the  value  of  the 
vendor's  lien  on  the  estate. (e) 

§  1445.  Hence,  acts  of  ownership  which  are  clearly  an 
improvement  to  the  estate  will  not  support  such  an  applica- 
tion to  the  court :{/)  and  hence,  also,  acts  which  may  not 
show  that  the  occupier  considers  himself  the  owner,  and  so 
will  not  justify  a  decree  of  specific  performance  against  him 
without  further  investigation  of  the  title,  may  yet  be  a 
ground  for  an  order  to  pay  the  money  into  court,  and  the 
appointment  of  a  receiver  ;  so  that  in  one  case  stubbing  up 
an  osier-bed,  levelling  the  land  and  filling  up  a  pond,  were 
held  to  justify  an  order  for  payment  and  the  appointment 
of  a  receiver,  but  a  reference  of  title  was  at  the  same  time 
made.(p')  In  another  case,  Lord  Eld  on  took  into  considera- 
tion the  unreasonable  delay  which  had  been  caused  by  the 
purchaser  in  possession  as  well  as  his  acts  of  ownership,  [h) 

§  1446.  Although,  as  we  have  seen,  where  delay  occurs 
in  the  completion  of  a  contract  and  the  purchase-money 
bears  interest,  the  purchaser  paying  such  interest  to  the 
vendor  is  entitled  to  deduct  the  income-tax  on  the  amount 
of  the  interest, (/)  where  the  purchase-money  is  paid  into 
court,  this  deduction  is  not  allowed  :  because  payment  into 
court  is  not  payment  to  the  party  as  against  whom  the  pur- 
chaser is  entitled  to  deduct  the  tax.  HoAvever  the  purchaser 
may,  it  seems,  apply  for  the  deduction  when  the  money  is 
paid  out  of  court,  (y) 

§  1447.  The  order  for  X3ayment  into  court  may  be  made 
on  motion,  (/t)  and,  if  circumstances  justify  it,  before  the 
delivery  of  the  defense.  (Z)  In  the  Court  of  Chancery  the 
order  might  be  made  before  answer,  (m)  even  though  the 
defendant  had  filed  no  affidavit  so  as  to  bring  the  merits 
before  the  court,  (??)  and  though  the  acts  of  ownershij)  relied 
on  were  not  stated  in  the  bill  ;(o)  and  the  facts  necessary  to 

(e)  Cutler  V.  Simons,  2Mer.,  106,  where  a  (k)  Tindal  v.  Cobham,  2  My.  &  K.,  3So; 

list  of  acts  upon  which  such  orders  had  been  Wickham  v.  Evered,  4  Mad.,  53.    See,  also, 

made   is  given.    See,  also.   Pope  v.  Great  Buck  v.  Lodge,  IS  Ves.,  450;  and  Ord.  XL.  r. 

Eastern  Railway  Co.,  L.  R.  3  Eq.,  171,  and  11,  quoted  supra,  §  1334. 

Ballard  v.  Shutt,  15  Ch.  D-,  122.  \l)  Bonner  v.  Jonnston,  1  Mer.,  366;  Dixon 

(/)  Bramley  v.  Teal,  3  Mad.,  219.  v.  Astley,  1  Mer.,  133. 

(g)  Osborne  v.  Harvey,  1  Y.  &  C.  C.  C,  116.  (in)  e.  g.  Cooper  v.  London,  Chatham,  and 

(h)  Burroughs  v.  Oakley,  1  Mer.,  52,  376,  n.  Dover  Railway  Co.,  14  W.  R  ,  985. 

(i)  Crane  v.  Kilpin,  L.  R.  6  Eq.,  339,  supra,  (n)  Blackburn  v.  Stace.  6  Mad.,  69. 

§  1399;  Bebb  v.  Bunny,  1  K.  &  J.,  216.  (o)  Cutler  v.  Simons,  2  Mer.,  103.    See  now 

(J)  Bebb  V.  Bunny,  IK.  &  J.,216.  Ord.  XIX.  rr.  4,9,  17, 18,20;  Ord.  XXIX.  r.  11. 

42 


658        FRY  ox  ^PECrFIC  PERFOR.UANOE  OF  CONTRACTS. 

support  sucli  an  application  niight  be  supplied  by  affidavit, 
wliether  stated  in  the  bill  and  not  admitted  by  the  answer,  (^) 
or  not  stated  in  the  bill.(^)' 

§  1448.  AVhere  an  order  for  payment  into  court  has  been 
oi:)posed,  and  the  money  is  in  the  hands  of  a  stakeholder  who 
afterwards  absconds,  the  loss  has  been  held  to  fall  on  the 
party  who  opposed  the  order,  (r) 

§  1449.  It  has  been  decided  that,  when  interest  is  pay- 
able by  a  purchaser  in  possession,  the  time  at  which  it  first 
becomes  due  within  the  meaning  of  the  42d  section  of  the 
Statute  of  Limitations  (3  and  4  William  IV,  c.  27)  is  the  time 
when  the  purchase-money  becomes  actually  payable,  though 
it  (the  interest)  may  have  to  be  calculated  from  a  much 
•earlier  date.  In  the  case  referred  to  the  contract,  made  in 
March,  1811,  stipulated  that  the  purchase-money  should  be 
paid  on  the  following  thirteenth  of  May,  but  the  transaction 
remained  uncompleted  for  upwards  of  forty  years  under 
circumstances  which  kept  alive  the  vendor's  right  to  the 
purchase-money  :  it  was  held  that  all  the  arrears  of  interest 
irom  the  IStli  of  May,  1811,  were  recoverable  by  the  persons 
representing  the  vendor.  (5) 

(p)  Boothby  v.  Walker,  1  Mad.,  197.  («)  Toft  v.  Stevenson,  5  De  G.  M.  &  G.,  735. 

(q)  Crulchley  v.  Jerningham,  2  Mer.,502.  Of.  S.  C,  s.  n.  Toft  v.  Stephenson,  7  Ha.,  1; 

(r)  Fenton  v.  Browne,  14  Ves.,  144;   Bur-  1  De  G   M.  &  G.,2S. 

roughs  V.  Oakley,  1  Mer.,  52.  * 

1  Tender  by  payment  into  court.'\  In  a  case  wliere  the  payment  of  a  sum  of 
money  is  a  condition  precedent,  and  a  tender  of  performance  has  been  made, 
this  entitles  the  vendee  to  performance  on  the  part  of  the  vendor.  Tlie  money 
need  not  ])e  brought  into  court  until  the  vendor  demands  it.  Washburn  v. 
Dewey,  17  Vt.,  92^  Where  money  has  been  conditionally  paid  into  court,  the 
party  who  denies  the  existence  of  the  contract  upon  which  it  is  paid,  has  no 
claim  upon  such  money.  Lynch  v.  Jennings,  43  Ind.,  276;  Soule  v.  Holdridge, 
25  Ind.,  119.  Where  the  vendor  voluntarily  permitted  the  vendee  to  take  pos- 
session without  any  stipulation  about  paying  the  purchase  money,  such  vendee 
cannot  be  compelled  to  pay  the  money  into  court,  before  the  completion  of  the 
title.  Clark  v.  Elliot,  1  Mad.,  606.  In  Binns  v.  Mount,  28  N.  J.  Eq.,  24,  a 
non-resident  purchaser  having  brought  his  action  for  the  specific  performance 
of  the  agreement,  although  he  was  not  in  possession  of  the  property,  was  re- 
quired to  pay  the  purchase  money  into  court. 


THE   DEPOSIT.  659 


CHAPTER  VI. 

OF   THE   DEPOSIT. 

§  1450.  It  is  common  on  sales  of  real  estate  for  the  pur- 
'cliaser  to  pay  to  the  vendor  at  the  time  of  the  contract  a 
portion  of  the  purchase-money  by  way  of  part  payment. 
This  is  very  generally,  or  perhajjs  almost  universally,  the 
practice  in  cases  of  sales  by  auction  :{a)  it  is  the  exception 
in  cases  of  sales  by  private  contract. 

§  1451.  In  many  other  cases  payments  are  made  to  the 
vendor  by  way  of  instalment  or  part  payment.  Where 
without  any  default  on  the  part  of  the  purchaser  the  con- 
tract fails,  this  money  should  be  repaid.' 

§  145^.  Furthermore,  it  is  clear  that  the  payment  of  this 
money  to  the  vendor  or  his  agent  creates  a  lien  for  the 
amount  paid  on  the  vendors  interest  in  the  land.  "There 
can  be  no  doubt,  I  apprehend,"  said  Lord  Cranworth,  ad- 
dressing the  House  of  Lords,  ' '  that  when  a  purchaser  has 
paid  his  purchase-money,  though  he  has  got  no  conveyance, 
the  vendor  becomes  a  trustee  for  him  of  the  legal  estate, 
and  he  is,  in  equity,  considered  as  the  owner  of  the  estate. 
When,  instead  of  paying  the  whole  of  his  purchase-money, 
he  pays  a  part  of  it,  it  would  seem  to  follow,  as  a  necessary 
corollary,  that,  to  the  extent  to  which  he  has  paid  his  x^ur- 
chase-money,  to  that  extent  the  vendor  is  a  trustee  for  him  ; 
in  oth'er  words,  that  he  acquires  a  lien,  exactly  in  the  same 
way  as  if,  upon  the  payment  of  part  of  the  purchase-money, 

(a)  Note  that  where,  on  a  sale  by  auction,  ally  relieve  against  the  lapse  of  time.    See 

there  Is  a  condition  for  the  forfeiture  of  the  per  Lord  Redesdale  in  Lennon  v.  Xapper,  2 

deposit  if  the  purchase  be  not  completed  Sch.  &  Lef.,  684. 
within  a  certain  time,  the  court  will  gener- 

1  Effect  of  part  payment  on  tJie  rights  of  the  purchaser. '\  For  an  instructive  case, 
see  Keegan  v.  Williams,  22  Iowa,  378. 

Rise  in  value,  notice  that  contract  teas  at  an  end.'\  Real  estate  which  had  been 
sold,  was  likely  to  rise  in  value  within  a  few  days ;  the  vendor  gave  notice  on 
Saturday  that  the  contract  was  at  an  end,  and  would  not  be  renewed,  except 
for  a  greater  price.  The  vendee  made  no  objection,  and  the  vendor  sold  to  a 
third  party  on  the  following  Tuesday.  Held,  that  the  original  vendee  had  no 
remedy,  and  that  his  action  for  specific  performance  would  be  dismissed. 
Hawley  v.  Jelley,  25  Mich.,  94. 


660        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

the  vendor  had  executed  a  mortgage  to  him  of  the  estate  to 
that  extent." (6) 

§  1453.  In  Rose  v.  Watson,  (c)  W.,  having  successfully 
resisted  a  vendor's  suit  for  the  specific  performance  of  a 
contract  to  purchase  a  building  estate  on  the  ground  of  the 
vendor's  representations  not  having  been  fulfilled,  filed  a 
bill  to  enforce  his  lien  on  the  estate  for  deposit  and  instal- 
ments, of  purchase-money  with  interest.  The  House  of 
Lords,  affirming  the  decision  of  Kindersley,  V.  C,  held  the 
l)laintiff  entitled  to  such  lien  and  interest  in  priority  to  per- 
sons to  whom,  after  the  contract,  the  vendor  had  mortgaged 
the  property  ;  and  that  although  some  of  the  plaintiff's  pay- 
ments were  made  after  he  had  notice  of  the  mortgage. 

§  1454.  The  lien  is  not  strictly  confined  to  a  case  of  sim- 
ple purchase :  it  extends  to  the  case  of  a  lease,  and  entitles 
an  intended  lessee  who  has  entered  under  the  contract  and 
expended  money  to  a  lien  on  the  lessor's  interest  :((^Z)  it  ex- 
tends, too,  to  a  sub-purchaser :  so  that  where  A.  sold  to  B. 
and  received  part  payment  from  him,  and  B.  sold  to  C.  and 
received  part  payment  from  him,  C.  was  held  entitled  to  a 
lien  on  B.'s  interest  in  A.'s  estate. (e) 

§  1455.  This  lien,  in  the  case  of  a  purchaser,  extends  to 
(1)  all  instalments  of  the  purchase-money ;(/)  (2)  interest 
thereon  at  four  per  cent  per  annum  ;{g)  (3)  sums  paid  under 
the  contract  as  interest  on  the  unpaid  purchase-money  ;  (4) 
interest  thereon  \{h)  and  (5)  the  costs  of  an  unsuccessful  ac- 
tion by  the  vendor  against  the  purchaser.  (?') 

§  1456.  It  may  be  observed,  in  passing,  that  a  vendor 
under  the  Lands  Clauses  Consolidation  Act,  1845,  has  no 
corresponding  lien  on  the  land  sold  for  the  costs  of  an  arbi- 
tration payable  to  him  by  the  company.  (,/) 

§  1457.  The  lien  can,  no  doubt,  be  enforced  in  precisely 
the  same  way  as  a  vendor's  lien  for  unpaid  purchase-money, 
and  under  the  present  practice  {k)  there  can,  it  is  conceived, 

(6)  Rose  V  Watson,  ID  H.  L.  C,  683,  684.  Webb  v.Kirby,  7  De  G.M.  &  G.,  376;  Wythes 

See,  too,  perLord  Westbury,  inS.  C.,678.  v.  Lee,  3  Drew.,  396. 

(c)  10  H.  L   (;.,  67-2.     See,  also,  Wvthes  v.  (h)  Rose  v.  Watson,  10  H.  L.  C,  6<2. 

Lee,  3  Drew,  396.,  where  the  earlier  cases  are  (i)  Middleton  v.  Magnay,  3  H.  &  M.,233; 

considered  Turner  v.  Marriott,  L.  R.  3  Eq.,  744 

id)  Middleton  v.  Magnay,  2  H.  &  M.,  233  (j  )  Earl  Ferrers  v.  Stafford  and  Uttoxeter 

(«    Aberaman  Ironworks  v.  Wickens,  L.  Railway  Co.,  L.  R.  13  Eq.,  524;  AValker  v. 

R  4  Ch    101  Ware,  Hadham  and  Buntingl'ord  Railway 

'(/)  Bryant  v.  Busk,  4  Russ.,  5;  ffick  v.  Co.,  L.  R.  1  Eq.,  195;  Gould  v.  Staffordshire 

Phillips,  Prec.  in  Ch.,  575.    See  Graves  v.  Potteries  Waterworks  Co.,  5  Ex.,  214. 

Wright,  2  Dr.  &  War.,  79;  cf.  Myycock  v.  {k)  See,  especially,  Jud.  Act,  1873,  8.  24,. 

Beatson,  13  Ch.  D.,  386.  subs.  7. 

{g)  Lord  Anson  v.  Hodges,  5  Sim.,  227; 


THE   DEPOSIT.  661 

be  no  difficulty  in  giving  full  effect  to  the  purchaser  s  rights. 
For— 

(1)  If  the  vendor  be  plaintiff,  the  purchaser  (defendant) 
resisting  specific  performance  may  deliver  a  counterclaim, 
asking  for  a  personal  order  for  repayment  of  the  amount 
paid  and  interest,  and  for  a  declaration  of  his  lien  on  the 
plaintiff's  interest  for  those  sums  and  costs;  and  on  the 
plaintiff's  action  failing,  such  relief  would  clearly  be  granted 
to  the  defendant. 

(2)  If  the  purchaser  be  plaintiff',  he  will  frame  his  claim 
in  the  alternative,  asking  for  specific  performance  or  the 
rej^ayment  of  the  amount  paid  and  the  enforcement  of  his 
lien,  and  obtain  relief  accordingly. 

§  1458.  Where  the  deposit  which  the  purchaser  seeks 
to  recover  by  action  is  in  the  hands  of  the  auctioneer  at  the 
time  when  the  action  is  commenced,  and  is  a  large  sum,  the 
purchaser  may  properly  make  the  auctioneer  a  party  to 
the  action.  If  the  sum  is  small,  the  auctioneer  ought  not 
to  be  made  a  party  unless  and  until  he  has  refused  to  pay  it 
into  court.  (Z)' 

vi  1459.  In  a  recent  case,  where  the  contract  was  for  the 
sale  of  a  term  of  twelve  and  a  half  years  in  a  public  house 
(a  going  concern),  and  the  abstract  showed  that  the  lessors 
had  a  right  to  determine  the  lease  at  the  end  of  five  years, 
it  was  held  that  the  purchaser  was  entitled  to  rescind  the 
contract,  and  sue  for  the  repayment  of  the  dej^osit  and  in- 
terest, without  waiting  even  until  the  day  fixed  by  the  con- 
tract for  the  transfer  of  possession.  (??i^) 

§  1460.  On  the  other  hand,  where  the  purchaser,  after 
making  a  payment  by  way  of  deposit,  unjustifiably  repudi- 
ates the  contract,  or  it  in  any  other  way  goes  off*  through  his 
default,  the  vendor  is,  in  the  absence  of  stipulation  on  the 
point,  entered  to  retain  the  money,  treating  it  as  having 
been  paid  to  him  as  a  guarantee  for  the  purchaser's  per- 
formance of  the  contract,  (/i.) 

(i)  Earl  of  Egniont  V.  Smith,  6  Ch.  D.,469;  Roberts,  31  Beav.,  613.    See  too  Essex  v.  Dan- 

Cf.  Yates  V.  Farebrother,  4  Mad.,  239  iell,  T>.  R  10  C.  P.,  538  (where  there  was  a 

(to)  Weston  v.  Savage,  10  Ch.  D  ,  736.  condition  for  forfeiture  of  the  deposit) ;  and 

(n)  Ex  parte  Barrel!,  I,.  R.  .10  Ch.,  512;  De-  as  to  relief  against  forfeiture  of  the  deposit, 

pree  v.    Bedboroueh,    4  Giff.,  470;  Kell    v.  see  Lennon  v.  Napper,  2  Sch.  &  Lef.,684; 

Kokes,  14  W  R.,908;  cf.  Moeser  v.  Wlsker,  Moss  v.  Matthews,  3  Ves  ,  279. 

L.  R.  6  C.  P  ,  120,  and  distinguish  Casson  v. 

'  It  is  obvious  that  a  covenant  to  convey,  in  many  instances,  carries  witli  it 
an  obligation  to  refund.  Pratt  v.  Law,  9  Cranch,  456;  Pratt  v.  Campbell,  id., 
456;  see  Fox  v.  Longly,  1  A.  K.,  Marsh.,  388;  Campbell  v.  Bealor,  3  Bibb, 
300. 


662        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

§  1461.  But  conditions  for  forfeiture  of  the  deposit  to  the 
vendor,  (o)  or  its  repayment  without  interest  or  costs,  (^) 
cannot  be  enforced  by  a  vendor  who  is  unable  to  make  a 
good  title, 

§  146'3.  It  may  be  convenient  briefly  to  advert  to  the 
jurisdiction  in  respect  of  part  payment  of  the  purchase- 
money  and  the  lien  for  it  under  ,the  i^ractice  of  the  Court 
of  Chancery. 

§  1463.  Where  the  vendor  was  the  plaintiff,  and  failed  in 
his  suit  for  specific  i^erformance,  the  court  might  dismiss 
the  bill,  and  order  the  plaintiff  to  return  the  deposit  with 
interest  at  four  per  cent.  \{q)  or  it  might  declare  the  defend- 
ant entitled  to  a  lien  for  these  amounts  and  the  costs  of 
suit,  and  dismiss  the  bill  subject  to  this  declaration. (r) 

§  1464.  But  the  proceeding  of  the  court  in  this  respect 
was  discretionary,  and  depended  on  circumstances  :  for  the 
court,  by  dismissing  the  bill,  sometimes  meant  to  leave  the 
parties  to  their  remedies  at  common  law,  in  which  case  it 
did  not  order  the  return  of  this  deposit.  (.9)' 

§  1465.  With  regard  to  the  power  of  the  Court  of  Chan- 
cery to  give  the  i^urchaser  relief  in  respect  of  his  deposit 
where  he  was  the  plaintiff,  and  specific  performance 
was  refused,  considerable  variation  took  place.  (^)  But  in 
Todd  v.  Gee,('w)  Lord  Eldon,  after  fully  considering  the  ear- 
lier cases,  held  that,  except  in  very  special  cases,  a  bill 
could  not  be  filed  asking  the  performance  of  a  contract,  or, 
in  the  alternative,  an  issue  or  an  inquiry  Avith  a  view  to 
damages.  This  decision  was  followed  in  many  subsequent 
cases.  («) 

§  1466.  But  if  the  plaintiff  prayed  not  the  mere  repay- 
ment of  money  but  a  lien  upon  the  land,  he  was  seeking  for 

(0)  Want  V.  StalUbraBS,  L  R.  8  Ex.,  175.  Ves  ,  276,  n.;  Greenaway  v.  Adams,  12  Ves., 

(»)  McCulloch  V.  Gregory,  1  K  &J.,286,  3'J5;  Gwillim  v.  .^itone,  14  Ve8.,  128.    See  also 

295.  t!l"re  V.  .-ulton,  3  Mer  ,  237,  248. 

(q)  Lord    Anson  v.  Hodges,  5  Sim.,   227;  (m)  17  Ves.,  273 

Webb  V.  Kirby,  7  De  G  M.  &  G.  376;  SheaW  (v)  Kendall  v.  Beckett,  2  R.  &  M.,  88;  Jen- 

V.  Venables,  15  W.  R  ,  1166.  kJn»  v.   Parkinson,  2  My.   &  K  ,  5;  Van  v. 

(r)  Turner  v.  Marriott,  L.  R.  3  Eq  ,  744.  Corpe,  3  My.  &  K.,  269;  bainsbury  v.  Jones, 

(*)  Southcomb  v.  Blohop  ol  Extter.  6  Ha.,  2  Beav.,  462;  >.  C.  5  My.  &  Cr.,  1;  WilliamB 

225;  Rede  V  Oakes,  2  De  G.  J  &  S.,  518  v.  Edwards,  2  Sim.,  78. 
{t)  Denton  v.  Stewart,  1  Cox,  2.'J8;  S.  C,  17 

'  A  vendee  of  land,  in  possession,  paid  part  of  tlie  purchase  money  under 
the  contract,  but  on  being  sued  for  the  residue  by  the  vendor,  set  up  in  answer 
the  statute  of  frauds,  and  defeated  the  action.  Held,  that  this  was  an  aban- 
donment of  the  contract,  which  precluded  him  from  a  decree  of  specific  per- 
formance, and  entitled  him  to  a  restitution  of  his  purchase  money.  Payne  v. 
Graves,  5  Leigh.  561. 


THE   DEPOSIT.  663 

equitable  and  not  merely  legal  relief,  and  lie  could  maintain 
his  bill  for  specific  performance,  or,  in  the  alternative,  for 
alien  on  the  vendor's  interest  and  the  sale  of  it  accord!- 
ingly  ;{w)  or  he  might  enforce  his  lien  by  means  of  a  sup- 
plemental bill.(c'r) 

§  1467,  Where  a  contract  was  rescinded  on  the  ground 
of  fraud,  surprise,  or  misrepresentation,  and  a  deposit  had 
been  paid,  it  was  within  the  jurisdiction  of  the  court, 
when  decreeing  rescission,  also  to  order  the  deposit  to  be 
returned.  (?/V 

{w)  Wythes  v.  I^ee,  3  Drew.,  IVX,  coinpro-  (x)  Westmacott  v.  Robins,  4  De  G.  F  &  J., 
mlsed  on  appeal,  23  I.,  J.  Ch  ,  381).    CI'.  lilore    39). 

V.  Sutton,  3  Mer.,  237  (y)  Torrance  v.   Bolton,  L,.  R.  14  Eq.,  124, 

135;  affirmed  L.  R  8  Ch.,  118 

'  Interest  irJiere  the  purchase  price  has  not  been  paid  or  tendered.']  The  pur- 
chase price  bek)ngs  to  the  vendor  from  the  time  fixed  for  the  completion  of  the 
contract.  He  is  entitled  to  interest  upon  it,  provided  it  is  not  then  paid  or  ten- 
dered. Hart  V.  Brand,  1  A.  K.  ]Marsh.,  161;  Breckenridge  v.  Hoke.  4  Bibb, 
278;  Drake  v.  Barton,  IfS  Minn.,  462;  see,  also,  Warrall  v.  Munu,  88  N.  Y., 
137;  Gillet  v.  Maynard.  5  Jolin  ,  8.5;  Jones  v.  Jones,  49  Tex.,  683. 

Rents  and  jnrj fits.]  The  property  sold  belongs  to  the  vendee  from  the  time 
fixed  for  the  completion  of  tlie  contract,  and  he  is  entitled  to  the  rents  and 
profits  from  that  time.  The  vendee  died,  leaving  minor  heirs,  after  he  had 
paid  a  portion  of  the  purchase  money  and  taken  possession  of  the  estate. 
After  his  death  the  vendor  re-entered,  wasted  the  property,  and  sold  it.  In  an 
action  for  specific  perforniaiuc  held,  that  the  vendor  should  pay  the  highest 
rental  value  of  the  land  since  his  re-entry.  Cole  v.  Tyson,  8  Ired.'s  Eq.,  170. 
"Whatever  maybe  the  rule  where  a  trustee  has  not  himself  occupied  and 
enjoyed  the  trust  estate,  but  has  received  rents  from  it,  justice  and  equity  de- 
mand that  where  he  has  wrongfully  excluded  the  true  owner,  and  has  himself 
occupied  and  enjoyed  the  fruits  of  the  estate,  he  shall  at  least  account  for  its 
rental  value."  Per  curiam,  Henlen  v.  Martin,  53  Cal  ,  321.  In  one  case  the 
interest  had  accumulated  until  it  amounted  to  considerably  more  than  the  rents 
and  profits,  and  it  was  held  that  the  vendor  should  be  left  in  the  enjoyment  of 
them  until  a  good  title  was  shown,  and  that  then  he  should  receive  interest 
on  the  purchase  money,  and  the  vendee  reasonable  rents  and  profits,  notwith- 
standing, by  reason  of  a  fire  which  destroyed  the  building,  no  rents  were  re- 
ceived. Lombard  v.  Chicago  Sinai  Con.,  7.5  111.,  271.  The  owner  of  an  undi- 
vided half  of  an  estate,  contracted  to  convey  the  whole  Held,  that  if  the 
vendee  elects  to  take  what  the  vendor  can  convey,  he  need  pay  or  tender  only 
one-half  the  contract  price,  and  the  vendor  is  not  entitled  to  any  portion  of  the 
rents  and  profits  accruing  subsequent  to  the  making  of  the  contract.  Marshall 
V.  Caldwell,  41  Cal.,  611. 


664        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 


PART    VI. 

OF  SOME  CONTRACTS  IN  PARTICULAR. 


CHAPTER  I. 

OF  CONTRACTS  FOR  THE  SALE  OF  SHARES. 

§  1468.  The  subject-matter  of  this  chapter  is  contracts 
for  the  sale  of  shares  between  an  existing  and  an  intending 
shareholder,  not  contracts  for  the  taking  of  shares  from  a 
company  by  an  applicant.  Contracts  of  the  latter  kind 
have  been  referred  to  in  a  previous  part  of  this  treatise,  {a) 

§  1469.  The  vendor  or  purchaser  of  shares  may  gener- 
ally, as  we  have  ah'eady  seen,(&)  maintain  an  action  for  the 
specific  performance  of  the  contract -.(c)  he  will  be  entitled 
to  a  direction  that  the  defendant  execute  a  proper  deed  of 
transfer  and  concur  in  all  steps  necessary  to  procure  its 
registration,  and  also,  in  the  case  of  the  vendor  being  plain- 
tiif,  to  a  declaration  of  his  right  to  indemnity  in  respect  of 
calls  on  the  shares  accruing  after  the  purchaser  has  become 
the  owner  in  equity  \{d)  and  where  the  circumstances  of  the 
case  do  not  demand  the  whole  of  this  relief,  the  plaintiff 
may  receive  so  much  as  suits  the  necessities  of  the  case : 
so,  for  example,  the  decree  or  Judgment  has,  in  some  cases 
been  merely  one  for  indemnity. 

§  1470.  The  courts  of  common  law  having  recognized 
the  liability  of  the  purchaser  to  indemnify  the  vendor,  ac- 
tions were,  before  the  judicature  acts  came  into  operation, 
maintained  on  this  liability  in  those  courts,  (e) 

§  1471,  Contracts  of  this  description  are,  for  the  most 
part,  made  on  the  stock  exchange,  and  it  has  been  long  es- 
tablished that,  in  such  cases,  the  contract  must  be  held  to 

(o)  Supra,  §§  55,  283,  285.  Eq.,  544;  16  W.  R.,918;  approved  in  0am. 

(b)  Supra,  §  54.  ^<"ac  ,  Grissell  v.  Bristowe,  L.  R.  4  C.  P.,  36, 

(c)  A  8  to  proceeflingfl  under  the  Companies    151. 

Act.  1862.  8.  35,  see  supra.  §§  1111,1112.  {«)  Walker  v.  Bartlett,  18  C.  B.,  845,  which 

{d)  As  to  the  form  of  the  judi^ment  in  such  must  be  taken  to  overrule  Humble  v.  Lan^s- 

a  case,  see  Evans  v.  Wood,  L.  R.  5  Eq  ,  9;  ton  (7  M.  &  W.,  517)  on  the  point  of  indem- 

Palne  v.  Hutchinson,  L.  R    3  Ch.,  338.    See,  nity.    See,  ton.  Kellock  v.  Enthoven,  L.  R., 

also,  Sheppard  v.  Murphy,  I.  R  1  Eq.,  490;  2  8  Q.  B.,  458;  affirmed,  9  id.,  241. 


CONTRACTS  FOR  THE  SALE  OF  SHARES.       665 

be  made  with  reference  to  the  customs  of  that  body,  or  such 
of  them  as  are  not  unreasonable  or  otherwise  illegal ;(/") 
the  customs  being  pa.rtly  written  and  partly  unwritten,  and 
liable  to  change  from  time  to  time,  and  to  be  proved  afresh, 
and  possibly  differently,  in  each  succeeding  case. 

But  contracts  for  the  sale  of  shares  are  sometimes  made 
off  the  Stock  Exchange,  and  then  they  are  not  regulated  by 
anj  special  customs,  though  they  are  naturally  construed 
with  reference  to  the  constitution  of  the  company,  as  estab- 
lished by  its  special  act,  charter  of  incorporation,  or  other 
constituent  instrument. 

§  1472.  In  order  to  comprehend  the  nature  of  contracts 
on  the  Stock  Exchange,  it  must  be  observed  that  the  mem- 
bers of  the  Stock  Exchange  consist  of  two  classes,  brokers 
and  jobbers  :  that  a  broker  is  an  agent  of  a  vendor  or  pur- 
chaser of  shares  or  stock  ;  that  a  jobber  is  a  dealer  on  his 
own  account  in  the  like  commodities,  who  buys  them  for 
the  purposes  of  re-sale  at  a  profit :  that  on  the  Stock  Ex- 
change there  are  two  classes  of  contract,  those  for  cash 
and  immediate  execution,  and  those  for  the  ' '  account : ' ' 
and  that,  as  regards  the  dealings  for  the  account,  there  are 
three  successive  days  or  times  which,  according  to  the  cus- 
toms of  the  Exchange,  govern  the  execution  of  such  con- 
tracts, viz. :  first,  the  name  day,  when  a  purchasing  broker 
or  jobber  has  to  give  the  name  of  the  original  or  of  a  sub- 
stituted purchaser  to  the  vendor's  broker;  secondly,  the 
account  or  settling-day,  which  is  the  day  after  the  name 
day — on  this  day  the  price  has  to  be  paid  to  the  vendor's 
broker  ;  and  thirdly,  a  period  of  ten  days  after  the  account 
day,  allowed  for  the  completion  by  registration  of  the  trans- 
fers of  the  shares,  where  registration  is  required. 

§  1473.  Bearing  these  facts  in  mind,  the  reader  will  be 
able  to  follow  the  practice  on  the  Stock  Exchange,  which 
was  fully  stated  in  the  evidence  of  Mr.  De  Zoete  read  by 
Lord  Cairns  in  addressing  the  House  of  Lords  in  the  case 
of  Nickalls  v.  Merry :(//)  "In  the  case  suj^posed,  Avhere  the 
jobber  would  stand  as  purchaser,  he  would  on  the  day  pre- 
ceding such  account  day  (which  was  usually  called  the  '  name 
day')  be  bound  to  pass  to  the  broker  a  ticket  containing  the 

(/)  Nickalls  v.  Merry,  L.  R.  7  H.  L.,  530.  (g)  L.  R.  7  H.  L..  539-541.    See,  too,  ex  parte 

Grant,  13  Ch.  D.,667. 


666        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

name  of  a  person,  or  of  several  persons,  as  tlie  purchaser 
or  purchasers  of  the  said  shares  ;  or  he  might,  if  he  pleased, 
pass  his  own  name  as  such  purchaser,  in  which  latter  case 
only  would  h':"  have  been  bound  himself  to  take  to  the 
shares.  If  the  jobber  had  failed  to  i^ass  to  the  broker  such 
a  name  or  nanu-'s  by  the  name  day,  the  selling  broker  could 
have  sold  out  the  sliares  against  him,  and  have  compelled 
him  to  23ay  any  loss  thereon.  Until  the  name  day  it  was 
not  seen  who  might  stand  ultimately  either  as  purchasers 
or  sellers,  or,  iu  otlier  words,  who  might  ))e  the  persons  to 
transfer  or  to  talve  transfers  of  shares,  and  until  then  a  job- 
ber might  have  had  a  great  many  transactions  l)oth  of  buy- 
ing and  selling  with  the  same  brokers  or  jobbers,  or  with 
various  brokers  or  jobbers.  On  the  name  chi}',  in  the  case 
supposed,  if  the  jobber  having  purchased  had  sold  again,  a 
ticket,  containing  the  name  oL'  the  Y)erson  to  whom  the 
shares  were  to  be  transferred,  would  have  been  issued  by 
and  passed  on  from  the  ultimate  purchasing  broker  to  his 
seller,  and  so  on  through  the  hands  of  the  other  intermedi- 
ate sellers  and  buyers  in  succession,  who,  wdiether  acting  as 
jobbers  or  as  brokers,  had  dealt  in  the  shares,  until  it 
reached  the  hands  of  the  original  selling  broker.  Every 
member  passing  a  ticket  was  required  to  write  on  the  back 
of  it  the  name  of  the  member  to  whom  it  was  passed  ;  such 
ticket  would  also  have  contained  the  amount  of  purchase- 
money  agreed  to  be  given  for  the  shares  by  the  ultimate 
purchasing  broker,  and  also  a  note  that  he  would  pay  the 
same.  So  many  transactions  of  this  kind  took  place  during 
the  account,  that  on  the  name  day  the  ticket  of  necessity 
only  remained  in  the  possession  of  an  intermediate  jobber 
or  broker  for  the  time  required  to  take  the  particulars  of  it. 
It  sometimes  happened  that  the  same  ticket  passed  through 
the  same  member's  hands  several  times  in  f  ultillment  of  bar- 
gains made  with  other  members,  and,  as  a  matter  of  fact,  he 
had  neither  the  opportunity,  time,  nor  the  means  for  making 
inquiries  respecting  the  name  so  passed.  The  original  sel- 
ling broker  would  not  have  been  bound  to  deliver  a  transfer 
of  the  shares  to  the  ultimate  purchasing  broker  until  the 
expiration  of  ten  days  after  the  account  day,  and  during 
these  ten  days  the  said  purchasing  broker  could  not  have 
bought  in  the  shares  against  the  seller.    During  this  time  it 


CONTRACTS    FOR   THE   SALE    OF    SHARES.  667 

was  open  to  tlie  original  selling  broker  to  object  to  the  name 
passed  by  his  buyer,  in  which  case  such  buyer  would,  of 
course,  h:\\*^  passed  on  the  o})jection  to  the  person  from 
whom  he  received  the  name  as  hereinbefore  mentioned,  and 
practically  such  Iniyer  would  have  had  no  liability  or  inter- 
est in  the  question,  as  whatever  grounds  there  might  have 
been  for  object iii.i;-  to  the  name  would  have  had  to  be  met  by 
the  person  from  whom  it  emanated,  and  who  had  originally 
issued  the  ticket,  and  the  committee  of  the  said  Stock  Ex- 
change would,  if  appealed  to  by  the  sellifig  broker,  have 
decided  as  to  the  validity  of  any  such  objection,  and  would 
have  required  ' another  name  to  be  given  in  case  they  had 
consideied  it  right  to  do  so.     But  after  the  lapse  of  these 
ten  days  the  selling  broker  was  recpiired  to  deliver  the  cer- 
tificates mid  transfer  of  the  shares  to  the  said  ultimate  pur- 
chasing broker,  or  in  default  thereof,  the  latter  could  have 
bought  in  the  shares  against  the  seller.     The  usual  course 
of  business  was  for  the  selling  broker  to  deliver  the  transfer, 
together  with  the  corresponding  ticket,  to  the  said  ultimate 
purchasing  broker  from  whom  he  received  the  purchase- 
money.    The  said  ultimate  purchasing  broker  did  not  know 
to  whom  his  ticket  had  been  ultimately  passed  until  the 
delivery  of  the  tiansfer.     According  to  the  long- recognized 
and  weil-established  rules  and  usages  of  the  said  exchange, 
if  the  original  selling  broker  did  not  deliver  his  transfer 
and  certificates  and  obtain  payment  of  the  purchase-money 
within  hfteen  clear  days  from  the  name  day,  his  immediate 
buyer  was  released  from  all  loss  caused  by  the  default  of 
the  ultimate  purchasing  broker  to  pay  for  the  shares,  and 
the  latter  would  alone  remain  responsible ;  in  like  manner, 
if  the  member  who  issued  the  ticket  containing  the  name  of 
the  intended  transferee  of  the  shares  did  not  buy  in,  or  at- 
tempt to  buy  in,  the  same  shares  within  "fifteen  days  from 
the  account  day,  his  immediate  seller  was  released  from  all 
loss  caused  by  the  failure  of  any  member  through  whose 
default  the  shares  were  not  delivered  to,  and  the  purchase- 
money  paid  by,  the  ultimate  purchasing  broker  ;  the  jobber 
had  fulfilled  all  the  obligations  lequired  of  liim  by  the  rules 
and  usages  of  the  said  Stock  Exchange  in  respect  of  his 
contract." 

§  1474.  In  this  passage,  and  in  several  of  the  cases  which 


668        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

have  occurred,  the  jobber  is  spoken  of  as  if  his  rights  and 
liabilities  were  distinct  from  those  of  a  broker.  But  the 
broker  of  a  purchaser,  and  through  him  as  principal  the 
purchaser,  appeared  to  be  in  precisely  the  same  position  as 
a  jobber,  (Z() 

§  1475.  Such  being  the  practice,  the  contract  of  sale  to 
a  jobber  has  been  determined  to  l^e  to  the  effect  that,  at  the 
sitting-day,  he  will  either  take  the  shares  himself,  in  which 
case  he  must  accept  and  register  a  transfer  and  indemnify 
the  vendor,  or  he  will  give,  as  purchaser  or  purchasers,  the 
name  or  names  of  one  or  more  persons  capable  of  contracting 
and  who  have  authorised  him  to  contract  for  them,  and  to 
w-hom  no  reasonable  objection  can  be  made  :  and  that  when 
the  vendor  has,  by  executing  a  transfer  to  the  nominees, 
accepted  them  as  purchasers,  and  the  nominees  have  ac- 
cepted the  shares,  through  the  delivery  to  their  brokers,  on 
a  payment  by  their  brokers,  of  the  transfers  and  certificates 
of  shares,  then  two  things  follow,  viz.,  (1)  a  new  contract 
arises  between  the  original  vendor  and  the  nominees  of  the 
original  purchaser ;  and  (2)  as  a  consequence,  the  original 
purchaser  is  released  and  no  action  can  be  maintained 
against  him  in  respect  of  the  contract.  (^)  So  that  he  is  not 
in  any  sense  a  guarantor  of  the  performance  of  the  new  con- 
tracts b}^  his  subvendees. 

§  1476.  The  peculiarity  of  this  transaction  does  not  con- 
sist in  the  extinction  of  the  original  contract  by  the  new 
one  :  that  occurs  in  many  cases  :  but  in  the  right  reserved 
by  the  original  contract  to  the  purchaser  to  compel  the 
vendor  to  accept  a  new  contract  in  lieu  of  the  old  one.  In 
short,  the  original  contract  with  the  purchaser  is  one  for 
sale  and  purchase,  with  a  right  reserved  to  the  purchaser, 
under  certain  circumstances,  to  call  on  the  vendor  to  enter 

{h)  See  Maxted  v.  Pain  (2d  action).  L.  R.  executed    and    delivered  to  him :    that  the 

6  Ex.,  132,  170;  consider  Street  v.  Morgan, 21  vendor  has  no  right  to  object  to  execute  a 

L  I.  N.  S  ,  432  transfer  to  any  one  named  by  the  purchaser, 

(i)  Coles  V.  BrlBtowe,  L.  R.  4  Ch.,  3,  re-  and  does  not,  by  executing  the  transfer,  re- 
versing S  (J.  1-..  R  6  Eq.,  149;  Grlssell  v.  lease  the  purchaser  from  his  liability  to  in- 
Bristowe,  L  R.  4  C.  P..  36,  reversing  S.  C.  L.  demnify.  His  Lordship  held,  as  a  conse- 
R  3  C.  P.,  112.  In  Maxted  v.  Paine  (2d  quence,  that  Coles  v.  Bristowe  and  Orissell 
action),  L.  R.  6  Ex.,  132,  Lord  (then  Mr.  v  Bristowe  (ubi  supra)  were  rightly  decided, 
Justice)  Blackburn  suhjected  the  whole  but  on  wrong  grounds,  and  that  Maxted  v. 
jnatter  to  a  very  elaborate  examination,  and  Paine  [1st  action]  (L.  R.  4  Ex.,  81)  was 
held  that  it  was  no  part  of  the  contract  of  a  wrongly  decided.  See,  as  to  this  judgment, 
purchaser  of  shares  to  give  in  either  his  own  per  James,  L.  J.,  in  Merry  v.  Nickalls,  L.  R. 
name  or  that  of  his  real  principal:  that  he  7  Ch.,  750.  Lord  Blackburn's  views  seem  to 
contracts  to  accept  a  transfer  into  the  name  be  practically  overruled  by  the  decision  of 
which  he  furnishes,  and  to  indemnify  the  the  House  of  Lords  in  the  last-named  case 
Tcndor  against  all  calls  after  the  transfer  Is  (L.  R.  7  H.  L.,  530). 


CONTRACTS   FOR  THE   SALE   OF   SHARES.  669 

into  a  new  and  substitutionary  contract,  and  an  obligation 
on  the  part  of  tlie  vendor  to  do  so.  It  is  an  effective  con- 
tract to  contract. 

§  1477.  Of  the  original  liability  of  the  first  purchaser  to 
be  sued  in  specific  performance  and  for  indemnity  there  is 
no  doubt.  Let  us  now  inquire  a  title  more  exactly  what 
such  original  purchaser  must  have  done  to  relieve  himself 
from  his  original  liability. 

1st.  He  must  give  as  purchaser  the  name  of  a  person 
capable  of  contracting.  Accordingly  it  has  been  decided 
that  the  passing  on  the  name  of  an  infant  is  no  satisfaction 
of  the  jobber's  liability. (y) 

2d.  He  must  give  as  a  purchaser  the  name  of  a  person 
who  has  authorised  the  original  purchaser  to  bind  him  to  a 
contract  of  purchase :  so  that  passing  on  the  name  of  a 
person  who  gave  no  authority  is  no  satisfaction  of  the  first 
purchaser's  liability. (^')  As  regards  these  two  p>oints,  it 
has  been  urged  that  if  no  objection  was  taken  to  the  name 
within  ten  days  after  the  settling-day,  that  being  the  period 
allowed  for  the  approval  or  rejection  of  the  name  of  the 
ultimate  purchaser,  the  original  vendor  lost  his  right  to 
object :  but  the  contrary  has  been  held ;  the  j)ersonal  re- 
sponsibility, and  not  the  personal  capacity  or  authority, 
being  the  only  point  left  for  inquiry  and  determination 
within  the  ten  days. 

3d.  The  original  purchaser  must  give  a  name  to  which  no 
reasonable  objection  can  be  taken.  It  seems  that  residence 
in  Smyrna  would  be  a  reasonable  objection.  (^)  This  objec- 
tion, if  not  taken  within  ten  days,  would  come  too  late. 

§  1478.  The  nominee  of  the  original  purchaser,  whether 
jobber  or  purchasing  broker,  is  in  most  cases  a  sub- vendee. 
But  this  is  not  necessary.  The  exigency  of  the  contract  is 
satisfied  if  the  name  given  as  that  of  a  purchaser  be  that  of 
a  person  capable  of  contracting  and  who  has  contracted  to 
take  the  shares.     Thus,  where  the  j)erson  named  was  a  man 

(j)  Merry  v.  Xickalls,  L.  R.  7  Ch.,  733 ;  S.  C.  118  (James,  V.  C),  and  Maynard  v.  Eaton,  L. 

8.  n.  Nickalls  v.  Merry,  L.  R.  7  H.  L.,  530  (re-  R.  9  Ch.,  414.    See,  also.  Brown  v.  Black,  L. 

versing  the  decision  of  Bacon,  V.  C,  in  S.  U.  R.  15  Eq.,  363;  8  Ch.,  939. 

L.  R.  7  Ch.,  740,  and  overruling  Rennie  v.  (k)  Maxted  v.  Paine  (1st  action),  L.  R.  4 

Morris,  L.  R.  13  Eq  ,  203) ;  Dent  v.  Nlckalls,  Ex.,  81. 

22  W.  R.,  218;  Watson  v.  Miller,  W.  N.,  1876,  (I)  Allen  v.  Graves,  L.  R.  5  Q.  B.,  47S,  which 

18  (.Hall,  V.  C.) ;  Heritage  v.  Paine,  2  Ch.  D  ,  case,  however,  was  on  a  special  contract. 
594.    Of.  Nickalls  v.  Furneaux,  W.  N.,  1869, 


670        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTKACTS. 

of  straw,  who  for  a  gratuity  accepted  the  shares  in  a  broken 
company,  and  the  vendor's  brokers  did  not  object  to  the 
name  given  or  require  a  better  name,  tlie  original  purchaser 
was  hekl  to  have  performed  his  contract,  and  so  was  no 
longer  bound.  (?;?^) 

Whether  the  original  purchaser  is  bound  to  do  anything 
more  than  produce  a  new  contracting  party,  /.  e.,  whether 
he  is  liable  till  the  new  purchaser  has  actually  accepted  the 
transfer  of  the  shares,  is  a  point  which  is  hereafter  con- 
sidered. (?i) 

§  1479.  Where  the  nominee's  name  has  been  given,  with 
his  authority,  by  the  jobber  or  purchasing  broker,  and  such 
name  has  been  accepted  by  the  vendor  by  his  executing  the 
transfer  to  the  nominee,  and  the  nominee  has,  through  his 
broker,  paid  for  the  shares  and  accepted  the  transfer  and 
certificates,  a  new  contract,  as  we  have  seen,  arises  between 
the  vendor  and  the  nominee. (o)  This  new  contract  may  be 
enforced  by  an  action  for  indemnity,  (^:>)  or  by  an  action  for 
si)ecific  performance  and  indemnity,  (g-) 

§  1480.  In  accordance  with  some  of  the  authorities  the 
new  contract  has,  in  the  foregoing  sections,  been  stated  as 
arising  when  the  nominee  lias  paid  for  his  shares  and  ac- 
cepted the  transfer  and  certificates,  or,  to  put  it  in  other 
terms,  the  original  purchaser  is  only  discharged  when  he 
produces  a  nominee  who  himself  pays  for  the  shares  and 
accepts  the  transfer  (and  does  not  merely  contract  so  to 
do).(r)'  But  there  are  not  wanting  authorities  which  would 
place  the  constitution  of  the  new  contract  at  a  possibly 
earlier  stage,  viz.,  when  by  the  ticket  the  new  purchaser 
has  been  signified  to  the  original  vendor,  and  the  vendor 
has  signified  his  acceptance  to  the  new  purchaser.  (6-)  The 
point  has  never  been  precisely  determined :  and  as  the  only 
notification  that  the  original  vendor  accepts  the  new  pur- 
chaser appears  to  be  by  delivery  of  the  transfer  on  payment 

(m)  Maxted  v.  Paine  (2d  section),  L.  R.  4  appreved  in  Cam.  Scac.  in  Grissell  v.  Bris- 

Ex.,  203,  affirmed  in  Cam.  Scac.  L.  R.  6  Ex.,  towe,  L.  R.  4  C.  P.,  36,  51;  Hawkins  v.  Malt- 

132.  bv,  1..  R.  4  Eq  ,  .572;  3  Cli  .  188;  6  Kq.,  505;  4 

(71)  See  infra,  §  1480  et  seq.  Cii.,  2iiO;  Hodgkinson  v.  Kelly,  6  Eq  ,  496. 

(o)  Sec  per  Cockburn.  C.  J  ,  in  Grissell  v.  (r)  See  per  Cockburn,  C.  J.,  in  Grissell  v. 

Brlstowe,  i..  R.  4  C.  P.,  51.  Brlstowe,  L.  R.  4  C.  P  ,51;  per  James,  L.J. , 

(p)  Davis  V.  Haycock,  L.  R.  4  Ex.,  373;  In  Merry  v.  Nickalls,  L.  R.  7  Ch  ,  751. 

Bowring  v.  Shepherd,  L.  R.  6  Q.  B..  309.  (s)  See  per   Brett,  J  ,  in  Howring  v.  Shep- 

(g)  Sheppard  t.  Murphy,  16  W.  R  ,  948;  I.  herd,  L.  R.  6  Q.  B.,  328;  per  Kelly,  C.  B..  In 

R.  2  Eq.,  544  (reversing  S.  C,  I.  R.  1  Eq.,  490),  Davis  v.  Haycock,  L.  R.  4  Ex.,  384. 


CONTRACTS   FOR  THE   SALE   OF   SHARES.  671 

of  the  price,  the  point  does  not  seem  to  be  one  of  much 
practical  importance. 

§  1481.  The  new  contract  is,  as  we  have  seen,  between 
the  original  vendor  and  the  ultimate  purchaser  or  nominee. 
Between  the  original  vendor  and  any  of  the  intermediate 
parties  there  is  no  contract.  (^) 

§  1489.  In  one  case,  however,  it  has  been  held  that  there 
is  a  right  to  indemnity  in  equity  on  the  ground  of  trust. 
The  case  alluded  to  is  Castellan  v.  Hobson.(w)  There  A. 
through  his  broker  sold  to  a  jobber,  B.  B.  sold  to  C. 
through  his  broker.  C.'s  broker  gave  the  name  of  D.,  who 
was  a  man  of  straw  and  was  held  to  be  a  trustee  for  C.  A. 
executed  a  transfer  to  D.  and  received  the  money :  D.  did 
not  execute  the  transfer,  and  before  registration  the  com- 
pany was  woundup:  C.  was  held  liable  to  indemnify  A., 
on  the  ground  that  A.  was  a  mere  legal  owner  of  the  shares 
and  entitled  to  indemnity  from  the  real  equitable  owner, 
and  that  C.  was  such  owner.  It  may  be  doubted  how^  far 
the  case  can  be  considered  as  an  authority  since  the  decis- 
sions  in  Coles  v.  Bristowe(?5)  and  Maxted  v.  Paine  (second 
action)  :{io)  for  it  would  appear  that  A.'s  original  contract 
of  sale  was  liable  to  be  extinguished  by  a  new  contract 
which  he  agreed  to  enter  into  with  a  nominee,  and  that  by 
executing  a  transfer  to  D.  he  accepted  him  as  purchaser, 
and  it  would  seem  to  follow  that  he  could  look  to  him  and 
to  no  one  else  for  indemnity.  The  non-registration  of  the 
transfer,  too,  seems  immaterial  according  to  the  more  recent 
cases. 

§  1483.  In  Viscount  Torrington  v.  Lowe,(.r)  the  court  of 
common  pleas  held  that  no  action  could  be  maintained 
against  the  subvendee  whose  nominee  had  been  accepted  by 
the  original  vendor,  and  they  expressed  the  further  opinion 
that  there  was  no  equitable  right  against  him. 

§  1484.  In  some  cases  the  ordinary  form  of  contract  is 
departed  from,  and  a  contract  is  made  by  the  jobber  or  pur- 
chasing broker  with  registration  guaranteed.  This  sui)er- 
adds  an  important  obligation  on  the  original  purchaser,  so 
that  he  has  not  completed  his  contract  until  he  has  either 

(t)  viscount  Torrington  v.  T.owe,  L.  R.  4  this  case.    Cf.  Nickalls  v.  Furneaux,  W.  N., 

C  P  ,  26  1869,  118  (James,  V.  C.) 

(M)  L.  R.  10  Eq,.  47  (James,  V.  C.)    The        (i)  L.  R.  4Ch.,  3. 
case  of  Viscount  Torrington  v.  Lowe  does       (w)  L.  R.  4  Ex..  20S,  6  Ex.,  133. 
not  appear  to  have  been  cited  to  the  V.  C.  in       (x)  L.  R.  4  C.  P.  26. 


672        FRY  OlSr  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

himself  paid  for  the  shares  and  registered  tlie  transfer,  or 
has  procured  some  nominee  to  do  both  these  things.  There- 
fore where  the  jobber  procured  a  nominee  to  accept  or  pay 
for  the  shares,  but  the  transfer  was  not  registered,  the  job- 
ber or  original  purchaser  was  still  liable  to  a  suit  for  specific 
performance  and  indemnity.  (//) 

§  1485.  Cases  may,  of  course,  often  occur  where,  inde- 
pendently of  the  customs  of  the  stock  exchange,  a  third  i)er- 
son  may  so  adopt  the  purchaser' s  contract  as  to  place  him- 
self in  the  shoes  of  the  purchaser,  and  give  to  t]).e  vendor  a 
direct  right  against  himself.  The  x)ractice  of  x)assing  on 
shares  before  transfer  executed  gives  great  facilities  for  such 
a  result  to  arise. 

§  1486.  In  one  caseW.  directed  his  broker  to  buy  shares 
in  a  discount  comj)any :  the  broker  bought  them  from  the 
plaintiff,  and,  on  W.'s  instructions,  gave  the  name  of  G.  (a 
director  of  the  company)  as  purchaser.  G.  received  the 
transfers  made  out  in  his  name,  retained  them,  and  depos- 
ited them  as  security  for  the  purchase-money,  which  was 
paid  out  of  the  com^Dany's  funds  and  debited  to  Gr.'s  firm. 
G.  denied  that  he  had  assented  to  the  shares  being  bought 
in  his  name  :  but  Stewart,  V.  C,  held  that  G.  had  assented 
to  the  new  contract,  and  accordingly  made  against  him  a 
decree  of  s^Decific  performance.  (^) 

§  1487.  A  somewhat  similar  state  of  facts  arose  in  an 
earlier  suit.  There  A.  sold  to  B.,  and  B.  sold  to  C.  A. 
executed  a  transfer  to  C,  which  C.  did  not  register.  A. 
then  sued  B,,  and  obtained  a  decree  directing  an  inquiry  as 
to  A.'s  title  :  the  Master  certified  in  effect  that  A.,  by  exe- 
cuting the  transfer  to  C,  had  precluded  himself  from  making 
a  title  to  B.,  and  on  this  ground  the  bill  was  dismissed  on 
further  consideration,  (a) 

§  1488,  So  again,  in  the  case  of  a  contract  between  A. 
and  a  comxDany  to  take  shares  and  make  certain  payments, 
the  registration  by  the  company  of  a  transfer  by  A.  to  B., 
before  A.  had  made  the  payments  entitling  him  to  be 
registered  as  a  shareholder,  was  held  by  Lord  Selborne 
(sitting  as  a  judge  of  first  instance)  to  be  a  new  contract 

(y)  Cruse  v.  Paine,  L.  R.  6  Eq.,  641;  4  Ch.,       iz)  Shepherd  v.  Gillespie,  L.  R.  5  Eq.,  293. 
441.  (a)  Shaw  v.  Fisher,  5  De  G.  M .  &  ti.  596. 


CONTRACTS  FOR  THE  SALE  OF  SHARES.       673 

between  B.  and  the  company  which  extinguished  the  earlier 
contract  between  A.  and  the  company,  (6) 

§  1489.  The  following  circumstances  require  considera- 
tion in  actions  of  this  description : 

The  plaintiff  in  some  cases  has  been  only  equitably  entitled 
to  the  shares,  which  have  been  registered  in  the  name  of 
some  third  person.  This  has  been  held  no  objection  to  a 
decree  for  specific  performance  or  for  indemnity  to  the 
plaintiff,  (c) 

§  1490.  Whether  the  fact  that,  before  the  contract  was 
made,  a  call  was  made  on  the  shares  of  which  the  purchaser 
was  ignorant,  was  a  defense  to  a  suit  for  the  performance  of 
a  contract  to  buy  the  shares,  was  a  point  much  considered 
in  the  successive  stages  of  the  litigation  in  Hawkins  v, 
Maltby,(rZ)  but  can  hardly  be  said  to  have  been  there 
decided.  In  fact  there  the  call  was  made  on  the  same  day 
as  the  contract,  but  whether  before  or  after  did  not  appear. 
In  the  absence  of  fraud  or  misrepresentation,  it  does  not 
seem  clear  wiiy  the  fact  that  a  call,  which  the  purchaser 
must  have  known  could  at  any  time  be  made,  has  been 
made,  should  avoid  the  contract  or  prevent  either  party 
from  enforcing  it. 

§  1491.  Where  the  constitution  of  the  company  gives 
the  directors  a  power  to  refuse  to  register  transfers,  the 
■question  arises  whether  the  refusal  on  the  part  of  the 
directors  to  register- the  purchaser,  relieves  him  from  the 
obligation  of  performing  the  contract. 

This  question  must  be  answered  differently  according  to 
circumstances. 

§  1492.  (1)  Where  the  contract  is  made  on  the  Stock 
Exchange,  but  is  made  with  reference  to  the  constitution  of 
the  company,  or  subject  to  its  rules,  and  the  constitution  of 
the  company  requires  the  vendor  to  do  all  that  is  essential 
to  the  transfer,  the  vendor  is  under  an  obligation  to  procure 
the  assent  of  the  directors,  and  if  he  fail  to  do  so,  the  pur- 
chaser is  relieved  from  the  contract,  and  if  he  have  already 
paid  his  purchase-money  in  ignorance  of  this  refusal,  he 
may  recover  it  back.(6) 

(b)  Morton's  case,  L.  R.  16  Eq.,  104.  («)  Wilkinson  v.  Lloyd,  7  Q.  B.,  27;  cf.  per 

(c)  Paine  v.  Hutchinson,  L.  K.  3  Eq.,  257;  3    Lord  Campbell,  C.  J.,  in  Stray  v.  Russell,  1 
€h.,  388.  El.  &  El.,  900. 

(d)  L.  R.  4  Eq  ,  572;  3  Ch.,  188;  6  Eq.,  505; 
4  Cb.,  21)0. 

43 


674        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS, 

§  1493.  (2)  Where  the  contract  is  made  on  the  Stock 
Exchange  and  subject  to  its  rules,  it  is  clear  that  the  refusal 
of  the  directors  to  register  the  transfer  is  immaterial ;  for, 
according  to  the  construction  put  upon  such  a  contract,  it 
is  performed  on  the  vendor' s  part  by  the  delivery  of  the 
transfer  and  certificates,  and  the  vendee  is  entitled  to  the 
right  which  he  thereby  acquires  to  procure  himself  to  be 
registered,  if  the  directors  so  choose  :  he  is  not  entitled  to 
an  absolute  and  unconditional  right  to  registration.  (/ )  In  a 
sale  on  the  Stock  Exchange  it  is  no  part  of  the  vendor's 
duty,  irrespective  of  express  contract,  to  i^rocure  the  regis- 
tration of  the  transfer.  (^) 

§  1494.  (3)  There  are  numerous  contracts  for  the  sale  of 
shares  which  fall  under  neither  of  the  two  classes  just  ad- 
verted to  :  and  with  regard  to  these  it  is  more  difficult  to 
say  what  is  the  effect  of  the  power  of  the  directors  to  refuse 
registration,  or  of  their  actual  refusal. 

Opposite  views  have  been  expressed.  On  the  one  hand, 
Lord  Komilly,  M.  R. ,  in  one  case  expressed  the  view  that 
every  contract  for  sale  of  shares  is  conditional  on  the  com- 
pany accepting  the  purchaser  as  a  shareholder :  (A)  on  the 
other  hand.  Lord  Chelmsford  intimated  an  opinion  that  in  no 
ordinary  case  will  the  discretionary  power  in  the  directors 
furnish  a  defense.  "  The  directors,"  he  said,  "may  decline 
to  register,  but  the  transaction  is  complete  as  between  trans- 
feror and  transferee. "(/) 

The  opinion  expressed  by  Lord  Romilly,  M.  R.,  in  the 
case  referred  to,0)  can  probably  not  now  be  sustained. 

§  1495.  In  a  subsequent  case,  before  the  last-named 
judge,  the  deed  of  settlement  of  the  company  provided 
that  no  shareholder  should  transfer  his  shares,  except  in 
such  a  manner  as  the  board  should  approve  :  a  shareholder 
contracted  to  sell  his  share  :  the  board  refused  its  consent 
to  his  making  the  transfer  :  and  the  vendor  tlien  refused  to 
complete :  the  purchaser  filed  his  bill,  and  obtained  a  de- 
cree on  the  ground  that  the  deed  of  settlement  did  not  pre- 
vent the  sale  of  shares  or  give  the  directors  an  arbitrary 

(/)  Remfry  v.  Butler,  El.  B.  &  E.,  887;  (h)  Bermlngham  y  Sheridan,  33  Beav.^ 
Stray  v.  Russell,  1  El.  &  El.,  888.  660. 

(ff)  Stray  V,  Russell,  1  El.  &  EL,  888.  As  to  (i)  Hawkins  v.  Malthy,  L.  R.  3  Ch..  194. 
purchases  with  registration  guaranteed,  see  See  per  Lord  Romilly,  M.  R,,  in  Hodgliinson 
supra,  §  1484.  v.  Kelly.,  L.  R.  6  Eq.,  496 

(j)  Bermingham  v.  Sheridan,  33  Beav.,  660. 


COISTRACTS   FOE,  THE   SALE   OF   SHARES.  675 

will  on  such  an  occasion :  in  case  the  parties  differed  the 
conveyance  was  to  be  settled  in  chambers,  (/i) 

g  1496.  Whether,  independently  of  the  rules  of  the 
Stock  Exchange  or  of  other  special  contract,  the  duty  of 
procuring  the  transfer  to  be  registered  rests  on  the  vendor 
or  purchaser,  has  not  been  the  subject  of  any  conchisive 
decision.  It  is  a  point  of  great  moment  for  the  determina- 
tion of  the  question  now  under  our  consideration  :  for,  if  it 
rests  on  the  purchaser,  his  non-performance  of  his  obliga- 
tion can  never  prejudice  the  vendor.  There  are  in  the  cases 
arising  upon  Stock  Exchange  contracts(Z)  numerous  dicta 
which  imply  that,  generally,  the  duty  is  upon  the  purchaser, 
and  it  is  apprehended  that  this  will  be  decision  of  the  ques- 
tion when  it  shall  arise. 

§  1497.  It  is  settled,  and  indeed  could  hardly  be  doubted, 
that  when,  through  the  fault  or  default  of  the  defendant, 
the  transfer  had  not  been  presented  for  registration,  and 
then  a  winding  up  had  intervened,  and  there  was  no  evi- 
dence to  show,  if  the  transfer  had  been  duly  presented  by 
the  defendant,  he  would  not  have  been  accepted  as  a  trans- 
feree, the  objection  based  on  the  refusal  to  transfer  must 
fail.(m) 

§  1498.  The  winding  up  of  the  company  has,  in  many  of 
these  cases,  been  urged  as  an  objection  to  the  relief  sought, 
here  we  must  distinguish  between  cases  in  which  the  pre- 
sentation of  a  petition  was  before  and  those  in  which  it  was 
after  the  making  of  the  contract. 

§  1499.  (1)  Where  the  petition  has  first  been  presented, 
then  the  contract  has  been  made  by  both  parties  in  ignor- 
ance of  that  fact,  and  then  the  petition  has  resulted  in  a 
winding  up,  there  has  been  common  mistake  or  common 
ignorance :  and  in  such  a  case  it  appears  that  the  court 
could  not  compel  the  specific  performance  of  the  contract. (ti) 
§  1500.  (2)  But  where  the  petition  has  been  presented 
after  the  making  of  the  contract,  the  defense  does  not  ap- 
pear admissible :  for  the  general  rule,  that  the  destruction 
or  failure  of  the  subject  matter  of  a  contract  after  it  is  en- 
tered into  is  no  defense,  must  prevail,  (o)  and  if  the  contract 

(k)  Poole  V.  Midilleton,  29  Beav.,  046.  (to)  Evans  v.  Wood,  L.  R.  5  Eq.,  9;  Paine 

(l)  Sheppard  v.  Murphy,  1.  R.  '2  Eq.,  544;  v.  Hutchinson,  L.  R.  3  Ch.,388.                  .,^^ 

16  VV    R    948-  Stray  V.  Russell,  1  El.  &  El.,  (n)  Emerson's  Case,  L.  R.,  1  Ch.,  433.   '■    ' 

888-  Evans  v   Wood,  L.  R.  5  Eq.,9;  Hodg-  (o)  Coles  v.  Bristowe,  L.  R.  ti  Eq.,  149; 

kinson  v.  Kelly,  L.  R.  6  Eq.,  496.  Taylor  v.  Stray,  2  C.  B.  N   S.,  175. 


676        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

cannot  be  perforaied  modo  et  forma,  tlie  court  can  still  give 
relief  by  way  of  indemnity. (^) 

§  1501.  The  point  has  been  urged  in  various  forms.  It 
has  been  said  that  the  substitution  of  the  one  name  for  the 
other  on  the  register  of  the  company  is  part  of  the  contract, 
and  that  by  the  winding  up  of  the  company  this  has  become 
impossible:  and  further,  as  regards  companies  under  the  com- 
panies act,  1866,  that  the  effect  of  the  131st  and  163d  sec- 
tions of  that  act  is  to  render  transfers  after  the  commence- 
ment of  the  winding  up  absolutely  illegal  and  mere  waste 
paper, (^)  But  neither  of  these  arguments  seems  valid. 
As  to  the  first,  it  may  be  replied  that,  unless  by  special 
contract,  the  vendor  is  not  bound  to  procure  the  registra- 
tion, but  that  duty  rests  on  the  purchaser,  (r)  and  that  in 
cases  of  contracts  on  the  Stock  Exchange  the  registration 
of  the  transfer  is  no  part  of  the  bargain  :  as  to  the  second 
point,  it  is  clear  that  the  effect  of  the  statute  is  not  to  make 
the  transfer  illegal  or  void,  but  to  give  a  discretion  to  the 
liquidator,  or  the  court,  to  allow  them  to  operate  or  not  to 
operate  as  transfers. (5)  In  short,  the  question  who  is  on  the 
register  is  one  between  the  company  and  the  shareholder ; 
the  question  who  is  to  bear  the  calls  and  take  the  profits  is 
one  between  the  buyer  and  seller,  with  which  the  company 
is  not  concerned,  (if) 

(p)  Cruse  V.  Paine,  L.  R.  6  Eq.,  641,  653.  (;•)  See  supra,  §  1496. 

Birmingham  v.  Sheridan,  33  Beav.,  660,  prob-  (s)  Chapman  v.  Shepherd  and  Whitehead 

ably    cannot    be    supported.      Distinguish  v.  Izod  ubi  supra;  Emmerson's  Case,  L.  R. 

Holmes  v.  Symons,  L.  R.  13  Eq.,  66.  1  Ch.,  433;  Sheppard  v.  Murphy,  ubi  supra. 

(?)  Chapman  v.  Shepherd  and  Whitehead  (t)  See  per  Lord  RomiUy,  M.  R.,  in  Hodg- 

V.  Izod,  L.  R.  2  C.  P.,  228;  Sheppard  v.  Mur-  kinson  v.  Kelly,  L.  R.  6  Eq.,  496. 
phy,  I.  R.  2  Eq.,  544;  16  W".  R.,  948. 

'  The  doctrines  of  English  chancery  have,  in  this  respect,  been  carried  out  in 
this  country.  So  in  Lewis  v.  Madisons,  1  Munf.,  308,  a  contract  under  seal 
between  two  brothers,  by  which  one  of  them  agreed  to  convey  to  the  other  a 
certain  tract  of  land  expected  to  be  devised  to  him  by  their  father,  when  he 
should  have  obtained  possession  of  it,  was  held  not  to  contra  bonos  mares.  And 
it  was  further  said  that  an  action  of  covenant  could  be  supported  thereon,  or 
that  it  could  be  specifically  enforced  in  equity.  Price  v.  Winston,  4  Munf., 
63,  is  a  repetition  of  the  same  principle.  There  a  testator  having  devised  cer- 
tain slaves  to  his  sister,  during  her  life,  and  after  decease  to  be  equally  divided 
among  them,  "  to  them  and  their  heirs  forever,"  a  written  agreement  not  under 
seal,  entered  into  in  her  life-time  by  all  her  children  then  living,  to  stand  to  a 
fair  and  equal  division  of  said  estate  among  the  children  who  should  be  living 
at  her  death,  and  the  issue  of  such  as  should  have  then  died,  or  might  die  be- 
fore her,  was  decided  not  to  be  a  nudum  pactum,  but  founded  on  sufficient 
consideration,  and,  therefore,  binding  on  the  contracting  parties. 


CONTINGENT   INTERESTS   AND   EXPECTANCIES.  677 


CHAPTER  II. 

OF   CONTRACTS   RELATING    TO    CONTINGENT    INTERESTS   AND 

EXPECTANCIES, 

§  150^.  At  common  law  it  has  been  laid  down  that  the 
possibility  of  succession  is  not  an  object  of  disposition,  and 
that  if  the  heir  were  to  dispose  of  the  succession  during  the 
life  of  the  ancestor,  such  disposition  would  be  void,  though 
the  inheritance  should  afterwards  have  devolved  on  him.  (a)' 
However,  in  a  case  before  the  Queen's  Bench,  the  court  sup- 
ported as  valid  a  contract  to  sell  an  estate  if  it  should  be 
devised  to  the  vendor  by  a  person  then  living.  (5) 

§  1503.  In  courts  of  equity  contracts  relating  to  expect- 
andes  have  been  long  upheld,  (c)  and  that  although  they 
may  in  some  sort  seem  to  have  defeated  the  intentions  of 
testators,  or  been  in  fraud  of  parental  authority. 

§  ldi04.  One  of  the  earliest  cases  on  the  subject  is  Wise- 
man V.  Eoper,(<^)  where  a  covenant  to  settle  an  estate,  to 
which  the  covenantor  had  only  an  expectancy  as  heir,  was 
after  the  descent  of  the  lands  specifically  enforced  against 
him. 

§  1505.  In  Beckley  v.  New]and,((S)  the  plaintili'  and  the 
defendant  had  married  two  sisters,  who  were  the  presump- 
tive heiresses  of  Mr.  Turgis,  a  very  rich  man,  who  had  made 
and  revoked  several  wills,  and  ultimately  made  one  leaving 
a  great  estate  to  the  defendant,  and  only  a  small  one  to  the 

(a)  Per  Lord  Kenyon,  M.  R.,  in  Jones  v.  Lord  Eldon  In  Carleton  v.  Leighton  ^3  Mer., 

Roe  3T.  R.93     The  Roman  law  likewise  671),  that  the  expectancy  of  an  heir  could  not 

prohibited  such  contracts.     Pothler,  Tr.  ues  be  made  the  subject  of  contract  seems  an 

Oblig  ,  Part  1.  chap.  1.  s  ct.  4,  §  2.  error  of  the  reporter.    Apparently  the  word 

(6)  Coofe  V  Field,  15  Q    B  ,  460.  contract  is  written  for  conveyance. 

(c)  Of.  Alexaniler  v.  Duke  of  Wellington,  2  (d)  1  Rep.  in  Ch..  154. 

R.  &  My.,  35.    The  statement  attributed  to  («)  2  P.  VVms.,182. 

1  Varick  v.  Edwards,  11  Paige's  Ch.,  290;  Anderson  v.  Lewis,  1  Freem.  Ch. 
(Miss),  178;  Baylor  v.  Commonw^ealth,  40  Pa.  St.,  87;  Powers'  App.,  63  id., 
443;  Hasten  v.  JVIarlow,  65  N.  C,  695.  In  Kentucky,  a  contrary  doctrine  is 
held  Lomry  v.  Spear,  7  Bush  (Ky.).  451.  The  husband  agreed  to  convey 
land  belonging  to  his  wife,  in  which  he  had  a  life  estate  by  the  custody:  the 
wife  refused  to  convey.  Held,  that  the  contract  could  not  be  specifically  en- 
forced, and  that  he  could  not  be  compelled  to  convey  his  life  estate  in  the  same. 
McCann  v.  Jones,  1  Rob.  (Va.),  256.  An  executory  verbal  contract  depended 
upon  an  event  which  might  never  happen.  Held,  that  equity  would  not  de- 
cree specific  performance.     Bradley  v.  Morgan,  2  A.  K.  Marsh,  369. 


678        FRY  ON  SPECIFIC  PERFOKMANCE  OF  CONTRACTS. 

plaintiff.  Previously  to  the  execution  of  the  will,  the  plain- 
tiff and  the  defendant  had  entered  into  a  contract  for  the 
equal  division  between  them  of  what  should  be  left  to  each 
of  them  ;  and  this  contract  was  upheld  and  specifically  en- 
forced by  Lord  Macclesfield,  who  said  that  the  contract  was 
"not  disappointing  the  intent  of  the  testator,  for  he  did 
not  design  to  put  it  out  of  either  of  the  devisees'  power  to 
dispose  of  the  estate  after  it  should  come  to  him  ;  but,  on 
the  contrary,  when  the  testator  gave  it  to  either  of  them,  he 
by  implication  gave  that  person  a  j^ower  to  dispose  of  the 
said  estate  when  it  should  come  to  him."  The  same  prin- 
ciple was  pursued  by  his  Lordship  in  another  like  case,(/') 
and  was  followed  by  Lord  Hardwicke,  in  upholding  the 
validity  of  the  conveyance  of  a  contingency  or  possibly  on 
the  death  of  a  sister  unmarried.  (5^) 

§  1506.  InHarwood-v.  Tooke,(A)  the  plaintiff  and  the 
defendant,  the  celebrated  John  Home  Hooke,  had  made  a 
]3arol  contract  to  divide  what  should  come  to  them  from  a 
testator :  in  satisfaction  of  this  the  plaintiff  had  given  to  the 
defendant  Tooke  a  note  for  £4,000,  which  he  had  endorsed 
over  to  the  other  defendant,  Sir  Francis  Burdett,  for  valua- 
ble consideration.  All  that  Lord  Eldon  ultimately  decided 
in  the  case  may  have  been  that  the  plaintiff  had  no  equity 
to  follow  the  note  into  the  hands  of  this  j^urchaser  for 
value  ;  and  it  apj)ears  from  one  of  the  reports  that  he  ex- 
pressed doubts  whether  the  transaction  between  the  plain- 
tiff and  the  defendant  Tooke  was  not  a  fraud  on  the  testa- 
tor, and  whether  the  court  would  at  any  rate  assist  in  speci- 
fically performing  such  a  contract.  But  the  case  has  usu- 
ally been  treated  as  an  authority  for  the  validity  of  contracts 
relating  to  expectancies. (/) 

§  1507,  In  another  case  the  contract  seemed,  at  first 
sight,  in  fraud  of  the  parental  authority,  but  was  upheld  on 
a  like  ground  to  that  taken  by  Lord  Macclesfield.  A  con- 
tract had  been  entered  into  by  two  sons  to  divide  equally 
between  them  whatever  they  might  receive  from  their  father 
in  his  lifetime  or  after  his  decease,  by  will  or  otherwise.  It 
was  very  strongly  argued  that  this  was  a  scheme  on  the  part 

(/)  Hobson  V.  Trevor,  2  P.  Wms.,  191.  (i)  See  per  Shadwell,  V.  C,  In  Wethered  v. 

(g)  WrlKht  V.  Wright.  1  Ves.  Sen.  409.  Wethered, 2Slm.,  191;  Hyde  v.  White.  5Slm., 

ih)  2  Sim.,  192,  from  Mr.  Maddock' MS.  n.;  524;    and  per  Lord  Brougham   in  Lyde  v. 

IMy.  &K.,  685.  Mynn,  1  My.  &.  K.,693. 


CONTINGENT   INTERESTS   AND   EXPECTANCIES.  679 

of  the  sons  to  protect  themselves  from  the  consequences  of 
misconduct,  and  to  bid  defiance  to  parental  authority.  But 
Shad  well,  V.  C,  held  that,  as  the  testator  had  the  power 
of  giving  an  estate  to  his  sons,  so  that  they  should  have 
only  the  personal  enjoyment  without  power  of  alienation, 
and  did  not  choose  so  to  give  it,  but  gave  it  absolutely,  he 
had  allowed  it  to  become  liable  to  all  their  antecedents  con- 
tracts, and  therefore  to  the  contract  in  question,  of  which 
specific  performance  was  accordingly  granted.  (,/) 

§  1508.  Similar  in  principle  is  the  case  of  Lyde  v. 
Mynn,  {k)  where  a  husband  granted  an  annuity  for  his  life, 
and  by  way  of  further  security  covenanted  to  charge  it  on 
all  the  property  he  should,  in  the  event  of  his  wife' s  decease, 
become  entitled  to  by  her  will  or  otherwise  ;  and  it  was  held 
that  no  objection  could  be  taken  on  the  ground  of  its  rela- 
ting to  a  mere  expectancy  ;  and  the  court  accordingly  spe- 
cifically performed  the  covenant.  And  so,  again,  contracts 
respecting  the  costs  of  proceedings  in  lunacy,  or  the  ulti- 
mate division  of  a  lunatic' s  i^roperty  are  not  void.  {I) 

§  lo09.  In  a  case  recently  decided  by  Denman,  J.,  a  hus- 
band and  his  wife  had  assigned  to  one  of  the  iDlaintiffs  (who 
was  held  by  the  judge  to  be  a  trustee  for  the  other  plain- 
tiffs) all  the  interest  to  which  the  wife  or  the  husband  might 
become  entitled  under  the  will  of  C.  (who  had,  at  the  time, 
to  the  wife's  knowledge,  made  his  will  leaving  his  residuary 
estate  to  her  for  her  separate  use),  to  secure  £4,000  borrowed 
by  the  husband  for  the  iDayment  of  his  debts :  and  C.  had 
died  without  altering  his  will.  It  was  held  that  the  wife 
had  power  to  charge,  and  had  by  the  contract  effectually 
charged,  her  expectancy, (??z) 

§  1510.  The  circumstances  attending  such  contracts  as 
those  now  under  discussion,  are  oftentimes  of  such  a  kind 
as  to  prevent  the  court  from  enforcing  them.  Such  were 
the  circumstances  in  Morse  v.  Faulkner(7i)  in  the  exchequer, 
and  in  the  more  recent  case  of  Ryan  v,  Daniel,  (o)  In  the 
latter  case  each  of  the  two  young  officers  in  the  army  signed 
and  gave  to  the  other  a  document,  by  which  each  charged 
his  estate  with  £1,000  in  favor  of  the  other,  in  case  the 

(j)  Wethered  v.   Wethered,   2  Sim,    183.  (Z)  Persse  v.  Persse,  7  CI.  &  Fin.,279. 

See  accordingly  Hyde  v.  White,  5  Sim.,  524;  (m)  Flower  v.  Buller,  15  Ch.  D.,  665, 

HouKhton  v.  Lees,  1  Jur.  N.  S.,  862;  3  W.  B.,  (n)  3  Sw.,  429  n. 

135  (Stewart,  V.  C)  (o)  1  Y.  &  C.  C.  C,  60. 

(k)  1  My.  &K.,683. 


680        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

other  should  survive  him,  the  consideration  of  each  of  these 
documents  being  the  other  of  them :  many  years  subse- 
quently a  correspondence  passed  between  these  officers  with 
a  view  to  a  rescission  of  the  transaction,  but  that  intention 
was  never  carried  into  effect.  The  court  held  that,  looking 
at  the  circumstances  of  the  transaction,  the  age  and  con- 
dition of  the  parties  and  their  subsequent  correspondence, 
there  was  no  equitable  claim  which  the  court  would  enforce, 
but  it  retained  the  bill  for  twelve  months,  with  liberty  to 
bring  an  action  to  establish,  if  the  xolaintiff  could,  a  legal 
debt. 

§  1511.  It  has  been  judicially  suggested  that  contracts 
made  by  a  person  before  the  devolution  of  the  estate  or 
other  realization  of  his  expectancy  are  purely  personal,  and 
only  capable  of  being  enforced  against  the  contractor  per- 
sonally during  his  lifetime.  In  Morse  v.  Faulkn*'r,(^)  in 
1792,  Eyre,  C.  B.,  speaking  of  such  a  case,  said,  "  The  sur- 
rendor  not  having  any  title  whatever  to  the  premises,  at  the 
time  of  the  surrender,  his  agreement  would  not  raise  a  lien 
upon  the  land ;  and  although  the  x)resent  plaintiffs  might 
have  been  relieved  if  they  had  filed  their  bill  against  him  in 
his  lifetime,  that  is  after  his  title  had  accrued,  yet  it  does 
not  follow  that  therefore  they  can  be  relieved  against  his 
heirs.  IS^either  the  land  itself  or  the  conscience  of  the 
present  defendants  is  bound  by  this  act  of  William  the  sur- 
renderor." It  is  however  believed  that  this  view  has  not 
received  any  subsequent  confirmation.' 

(p)  3  Sw.,  429  n. ;  shortly  reported,  1  Anster  ,  11. 

'  Provision  by  jvirenis  for  children.^  Equity  "will  often  interpose  to  sustain 
defective  conveyances  by  parents  for  children.  The  same  principle  is  applica- 
ble to  brothers  or  sisters.  A  father,  for  the  purpose  of  securing  a  provision 
for  his  children,  executed  deeds  of  part  of  his  estate  to  them,  retaiuing  the 
instruments  in  his  possession,  and  directing  his  wife  to  hand  them  to  the  clerk 
for  record  after  his  death.  This  was  done.  There  was  no  claim  by  creditor 
or  purchaser.  Held,  that  equity  would  enforce  the  instruments.  Jones  v. 
Jones,  6  Conn.,  Ill;  Belden  v.  Carter,  4  Day,  68. 


CONTRACTS   FOK   PARTNERSHIP.  QSt 


CHAPTER  III. 

OF  CONTRACTS  FOR  PARTNERSHIP. 

§  1512.  As  a  general  rule,  the  court  will  not  enforce 
specific  performance  of  a  contract  to  form  and  carry  on  a 
partnership,  (a)  And  notwithstanding  some  early  authori- 
ties more  or  less  to  the  contrary,  (&)  it  is  clear  that  the  court 
would  in  no  case  compel  performance  of  a  contract  to  enter 
into  a  partnership  not  for  a  definite  term  :(c)  for  it  might  be 
dissolved  as  soon  as  entered  upon,  and  the  interference  of 
the  court  would  thus  become  simply  nugatory. 

§  1513.  "Where,  however,  the  contract  defines  the  term 
of  the  partnership,  and  there  has  been  part  performance  of 
the  contract,  the  court  may  specifically  execute  it  by  decree- 
ing the  parties  to  execute  a  iDroper  deed,  and,  if  necessary, 
by  restraining  any  partner  from  carrying  on  business  under 
the  partnership  style  with  other  persons,  and  from  publish- 
ing notices  of  dissolution.(cZj* 

§  1514.  AYhether  the  court  would  siDecifically  enforce  a 
contract  not  in  terms  to  enter  into  partnership  but  to  exe- 
cute a  deed  of  partnership  to  certain  terms  defined  or  ascer- 
tainable, has  never,  it  is  believed,  been  decided.  The  argu- 
ment that  such  a  judgment  should  be  pronounced  in  order 
to  give  the  plaintiffs  legal  rights,  seems  of  much  less  weight 
now  that  the  courts  of  common  law  and  equity  are  united. 

(a)  Scott  V  Ravment,  L.  R  7  Eq,  112;Si-  Gas  Consumers  Co.  (Repiptered)  v.  Harrigon, 

chel  V.   Mosenthkl.  30  Beav  ,  371;  and  see  17Beav.,294;  per  Kiucersley,  "'.  C,  in  New 

enpra,  g§  73,  824.  Brunswick,  etc.,  Co.  v.  Muggeridge,  4Drew., 

(6)  see  per  Lord  Hardwlcke  in  Buxton  v  69S. 

Lister,  3  Atk.,3S5;  Anon.,  2  Ves.  .Sen.,  629;  {d)  England  v.  i  urling,  8  Beav.,  129;  Hlb- 

Anon  ,  1  Mad  ,  Ch.,  525n.;  Hibbert  v.  Hib-  bert  v    Hibbert.  Collyer,  PaUn..  133     Cf.  the 

bert,  Collyer,  Partn,  133.  pleadings  In  Bluet  v.  Capstlck,  12  Ch.  D., 

(c)  Hercy  v    Birch,  9  Ves.,  357;    Sheffield  863. 

1  This  appears  to  be  clearlj-  the  rule.  Story's  Eq.  Jur. ,  §  666 ;  Collyer  on 
Partnership  (2d  Am.  ed.),  107,  110;  Byrd  v.  Fox,  ^  Mis  ,  574.  It  has  been 
supposed,  however,  that  the  court  would  go  to  the  length  of  .compelling  con- 
tracts of  partnership;  but  it  is  probable  that  the  court  "will  only  enforce  the- 
execution  of  partnership  deeds,  "The  reason  is  clear;  a  contract  of  partner- 
ship is  of  an  essentially  personal  character;  on  the  lunacy  of  one  partner,  the 
other  may  apply  to  the  court  for  a  dissolution,  and  he  himself  cannot  be  kept 
to  his  part  of  the  contract.  So,  in  general,  a  partnership  is  dissolved  by  the 
death  of  either  party.  It  -would  be  of  ill  consequence  in  general  to  say,  that, 
in  articles  of  partnership  in  trade,  where  no  provision  for  the  death  of  either 
is  made,  they  might  subsist  for  benefit  of  an  executor  who  may  not  have  skill, 
therein."     Bat.  Specif.  Perform.,  p.  166. 


682        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

§  1315.  Contracts  for  partnership  may  in  some  cases  be 
illegal,  as  amounting  to  sales  of  office,  as  contravening  the 
laws  regulating  trade,  or  otherwise. (d)  It  is  hardly  neces- 
sary to  observe  that  the  court  will  not  in  any  way  interfere 
for  the  benefit  of  parties  claiming  under  such  contracts,  or 
in  favor  of  contracts  for  partnership  tainted  with  fraud, 
hardship,  or  improper  conduct.  (/") 

§  1516.  Again,  where  the  contract  had  reference  to  the 
manufacture  and  sale  of  a  patent  medicine.  Lord  Eldon 
considered  that  the  court  could  not  decree  specific  perform- 
ance, because,  if  the  receipe  were  a  secret,  the  court  had  no 
means  of  enforcing  its  own  orders,  (p') 

§  1517.  There  are  of  course  a  great  many  cases(7^-)  in 
which  courts  of  equity  give  specific  relief  on  partnership 
articles  :  but  these  are  not  cases  of  specific  performance  of 
executory  contracts. 

(e)  See  Hughes  V.  Statham,  4  B.  &  C,  187;  also,  as  to  secret  medicines,  Williams  v.  Wil- 

Knowles  v.  Haughton,  11  Ves.,  168.  liams,  3  Mer.,  157;  Green  v.  Folglmm,  1  S.  & 

(/)  Vivers  v. '1  uck,  1  Moo.  P.  C.  (N.  S.),  S.,398;  Yovatt  v.  Winyarci,  1  J.  &  \V..  394. 

516;  Alaxwell  v.  Port  Tenant,  etc.,  Coal  Co.,  See  also  Lingen  v.  Simpson,  1  S.  &  S.,  600. 
24  Beav.,  495.  (h)  E.    g.   Homfray  v.  Fothergill,  L.  R.  1 

ig)  Newbery  v.  James,  2  Mer.,  446.    See  Eq.,  567. 


CONTRACTS   FOR  THE   SALE   OF   SHIPS.  683 


CHAPTER  IV. 

OF    CONTRACTS    FOR   THE    SALE   OF    SHIPS. 

§  1518.  Contracts  for  the  sale  of  ships,  or  of  shares  in 
ships,  have  long  been  affected  by  legislation.  The  present 
position  of  legislation  is  shortly  this.  By  the  merchant 
shipping  act,  1854  (17  &  18  Vict.  c.  104),  it  is  enacted  (s.  55) 
that  a  registered  ship,  or  any  share  therein,  when  disposed 
of  to  persons  qnalified  to  be  owners  of  British  ships,  shall 
be  transferred  by  bill  of  sale,  containing  such  description  of 
the  shij)  as  is  contained  in  the  certificate  of  the  snrveyor, 
or  such  other  description  as  may  be  snfiicient  to  identify  the 
ship  to  the  satisfaction  of  the  registrar,  and  which  shall  be 
in  a  form  (a)  given  by  the  statute,  or  as  near  thereto  as 
circumstances  permit,  and  executed  by  the  transferer 
before  and  attested  by  one  or  more  witnesses  :  no  individual 
is  entitled  to  be  registered  as  transferee  till  he  has  made  a 
certain  declaration  (s.  56):  and  (s.  57)  every  bill  of  sale  with 
the  required  declaration  is  to  be  produced  to  the  registrar, 
who  is  to  enter  the  name  of  the  transferee  as  owner  in  the 
registrar.  (/>) 

§  1»519.  By  the  merchant  shipping  act  amendment  act, 
1862,  (25  &  26  Yict.,  c.  63,)  s.  3,  it  is  declared  to  be  the  in- 
tention of  the  merchant  shipping  act,  1854,  that,  Avithout 
prejudice  to  the  provisions  contained  in  that  act  for  pre- 
venting notice  of  trusts  from  being  entered  in  the  register 
book  or  received  by  the  registrar,  and  without  prejudice  to 
the  powers  of  disposition  and  of  giving  receipts  conferred 
by  that  act  on  registered  owners  and  mortgages,  and  with- 
out prejudice  to  the  provisions  contained  in  that  act  relat- 
ing to  the  exclusion  of  unqualified  persons  from  the  owner- 
ship of  British  ships,  equities  may  be  enforced  against 
owners  and  mortgagees  of  ships  in  respect  of  their  interests 
therein,  in  the  same  manner  as  equities  may  be  enforced 
against  them  in  respect  of  any  other  personal  property. (c) 

(a)  Cf  The  Merchant  Shipping  4ct  Amend-  thereby  registered.  Orr.  v.  Dicliinson,  .John.s., 
ment  Act,  1855  (18  &  19  Vict.,  c.  91),  8.  11.  1 ;  cf.  Holderness  v.  Lamport,  9  W.  R.,  327; 

(b)  The  registration  ofa  bill  of  sale,  which    30  L.  J.  Ch.,  489. 

is  in  fact  invalid,  gives  no  title  to  the  person        (c)  See  Stapleton  v.  Haymen,  12  W.  E.,317. 


684        FRY  ox  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

§  15'20.  The  definition  to  persons  qualified  to  be  owners 
of  British  ships  is  to  be  found  in  the  18th  section  of  the 
merchant  shipping  act,  1854,  which  is  as  follows : 

"  No  ship  shall  be  deemed  to  be  a  British  ship  unless  she 
belongs  wholly  to  owners  oL  the  following  description  ;  that 
is  to  say, 

"(1)  Natnral-born  British  subjects  : 

"Provided  that  no  natural-born  subject  who  has  taken 
the  oath  of  allegiance  to  any  foreign  sovereign  or  state  shall 
be  entitled  to  be  such  owner  as  aforesaid,  unless  he  has, 
subsequently  to  taking  such  last-mentioned  oath,  taken  the 
oath  of  allegiance^^fZj  to  Her  Majesty,  and  is  and  continues 
to  be  during  the  whole  period  of  his  so  being  an  owner 
resident  in  some  place  within  Her  Majesty's  dominions,  or, 
if  not  so  resident,  member  of  a  British  factory,  or  partner 
in  a  house  actually  carrying  on  business  in  the  United 
Kingdom,  or  in  some  other  place  within  Her  Majesty" s- 
dominions  : 

••(2)  Persons  made  denizens  by  letters  of  denization,  or 
naturalized  by  or  pursuant  to  any  act  of  the  imperial  legis- 
lature, or  by  or  pursuant  to  any  act  or  ordinance  of  the 
proper  legislative  authority  in  any  British  possession  : 

''Provided  that  such  persons  are  and  continue  to  be  dur- 
ing the  whole  period  of  their  so  being  owners  resident  in 
someplace  within  Her  Majesty's  dominions,  or,  if  not  so 
resident,  members  of  a  British  factory,  or  partners  in  a 
house  actually  carrying  on  business  in  the  United  Kingdom, 
or  in  some  other  place  within  Her  Majesty's  dominions,  and 
have  taken  the  oath  of  altegiance  to  Her  Majesty  subse- 
quently to  the  period  of  their  being  so  made  denizens  or 
naturalized : 

"(3)  Bodies  corporate  established  under,  subject  to  the 
laws  of,  and  having  their  principal  place  of  business  in,  the 
United  Kingdom  or  some  British  possession.'' 

§  15^1.  The  result  of  this  legislation  appears  to  be  clear  : 
that  any  person  qualified  to  be  the  owner  of  a  British  ship 
may  sue  on  any  contract  for  the  sale  of  a  ship  or  share  in  a 
ship,  and  that  on  obtaining  judgment  he  will  be  entitled  to 

(d)  As  to  the  form  of  the  oath,  eee  The    Promis^iory  Oaths  Act,  1S^^,8  (31  &  33  Vict.     - 

7-2),  8.  14,  subs.  8. 


CONTKACTS   FOR  THE   SALE   OF   SHIPS.  685 

\)e  registered  :  but  that,  pending  entry  of  liis  name  as  owner 
on  tlie  register,  no  notice  of  liis  equity  can  ajjpear  on  the 
register,  or  be  noticed  by  the  registrar  :  that  the  registered 
owner  or  mortgagee  can  make  a  good  transfer  and  give  good 
receipts  to  purchasers  for  value  without  notice  of  the  equity 
under  the  contract :  and  lastly,  as  regards  unqualified  per- 
sons, that  they  cannor  maintain  an  action  ior  the  sale  of  a 
ship  or  share  in  a  ship  to  them. 

§  15^2.  It  may  be  convenient  very  briefly  to  advert  to 
the  history  of  the  legislation  on  this  topic.  (r=)  The  Act  26 
Geo.  III.  c.  60  required  (section  17)  the  bill  of  sale  on  every 
transfer  to  recite  the  certificate  of  registry,  and  declared 
that  otherwise  such  bill  of  sale  should  be  utterly  null  and 
void.  The  act  being  silent  as  to  contracts,  doubts  arose 
which  were  ended  by  the  Act  34  Geo.  III.  c.  68,  which  (sec- 
tion 14)  made  void  both  in  law  and  in  equity  all  contracts 
unless  made  in  the  manner  prescribed  by  the  former  act. 
Under  these  acts  a  contract  for  the  sale  of  a  ship  not  reciting 
the  certificate,  but  having  a  copy  of  the  certificate  annexed, 
was  void.(/) 

§  15^3.  These  acts  were  repealed:  and  the  enactment 
which  then  came  into  force  was  4  Geo.  lY.  c.  41,  which  pro- 
vided (section  29)  that  when  and  so  often  as  the  property  in 
any  ship,  or  any  part  thereof,  belonging  to  any  of  His 
Majesty's  subjects,  should,  after  registry  thereof,  be  sold 
to  any  other  or  others  of  His  Majesty's  subjects,  the  same 
should  be  transferred  by  bill  of  sale  or  other  instrument  in 
writing,  containing  a  recital  of  the  certificate  of  registry  of 
such  ship  or  vessel,  or  the  principal  contents  thereof,  other- 
wise such  transfer  should  not  be  valid  or  effectual  for  any 
purpose  whatever,  either  in  law  or  in  equity  :  to  which  was 
added  a  proviso  limiting  the  effect  of  an  error  in  such 
recital. 

§  1524.  This  clause,  which  departed  from  the  language 
of  the  older  statutes,  was  re-enacted  by  the  6  Geo.  IV.,  c. 
110,  s.  31,  the  3  c£-  4  W.  TV.,  c.  55,  s.  31,  and  the  8  &  9  Vict., 
c.  89,  s.  34 :  and  the  37th  section  of  the  last  mentioned  act 
further  provided  that  no  bill  of  sale  or  other  instrument  in 
writing  should  be  valid  or  effectual  to  pass  the  property  in 

(«)  See  Liverpool  Borough  Bank  v.  Tur-       i/)  Brewster  v.  Clarke,  2  .Mer  ,  To. 
ner,  IJ.  &  H.  h)6. 


QS6        FRY  ON  SPECIFIC  PERFOKMANCE  OF  CONTRACTS, 

any  sliij),  or  in  any  share  thereof,  or  for  any  other  purpose^ 
until  the  same  was  entered  on  the  register. 

§  1535.  The  change  of  hinguage  gave  rise  to  a  question  : 
but  it  was  determined,  under  the  hist  cited  act,  that  execu- 
tory contracts  to  transfer  not  complying  with  the  terms  of 
the  act  were  avoided  by  them.  (17)' 

§  15!l26.  Then  came  the  merchant  shipping  act,  1854^(17 
&  18  Vict.,  c.  104),  which  omitted  all  express  reference  to 
executory  contracts,  and  omitted  also  any  such  words 
as  are  contained  in  the  37th  section  of  the  previous  statute 
(8  &  9  Vict.,  c.  30):  and  thereupon  the  question  arose 
wdiether  executory  interests  might  be  enforced  under  con- 
tracts not  complying  with  the  formalities  of  the  act :  and 
this  question  was  determined,  as  to  an  equitable  mortgage, 
in  the  negative.  (A)  It  has,  however,  been  recently  decided 
that  an  executory  contract  to  transfer  a  shix)  to  a  purchaser 
need  not  be  registered,  and  may  be  enforced  by  the  registered 
owner  notwithstanding  the  non-registration. (/) 

§  1527.  Lastly  has.  come  the  amending  statute  of  1862 
(25  &  26  Vict.,  c,  63),  which  permits  the  enforcement,  under 
certain  conditions,  of  equities,  clearly  including  the  equity 
which  results  from  a  contract  for  sale  not  satisfying  the 
statutory  requisites  for  the  legal  transfer. 

§  1528.  Independently  of  the  statute  of  1862.  it  has  been 
determined  that  the  merchant  shipping  acts  do  not  apply  to 
a  contract  relative  to  the  xjroduce  of  the  sale  of  a  ship.  A. 
was  the  registered  owner  of  certain  shares  for  his  father's 
representatives:  he  was  captain  of  the  ship,  and  entered 
into  a  contract  with  his  father"  s  administrators  that  he 
should  navigate  the  ship  for  twelve  months  and  account  for 
the  profits,  and  at  the  end  of  the  twelve  months  sell  the 
shares  and  account  for  their  proceeds.     He  sold  the  ship: 

(g)  Hughpg  V.  Morris,  2  De  G.  M.  &  G.,  349;  (A)  Liverpool  Borough  Bank  v.  Turner,  1 

S  C.  9  Ha.   6^6;  McCalmont  v.  Rankin,  2  De  J.  &  H.,  159;  2  De  G.  F.  &  J  ,  502     See,  also, 

G.  M.  &   G..  403,  418;  Coombes  v.  Mansfield,  Chapman  v.  Callie,  9  0.  B.  N.  S.,  769 

3  Drew.,  193;  Duncan  v.  Tinciall,  13  C.  B.,  (t)  Batthyany  v.  Bouch,  44  L.  T.  N.  S.,  177. 
258. 

'  The  requirements  of  the  registry  acts,  in  this  respect,  are  the  same  by  the 
laws  of  the  United  States  as  those  of  England.  And  it  is  likewise  enacted 
here  that,  in  every  case  of  sale  or  transfer,  there  must  be  some  instrument  of 
writing,  in  the  nature  of  a  bill  of  sale,  which  shall  recite,  at  length,  the  certifi- 
cate of  registiy,  and,  without  it,  the  vessel  is  incapable  of  being  registered 
anew.  Laws  of  the  United  States,  31st  December,  1793,  §  14;  see  Kent's 
Com.,  vol.  '3;  p.  lio. 


CONTEACTS   FOR  THE   SALE   OF   SHIPS.  687 

and  on  the  bill  filed  to  enforce  the  contract,  the  objection 
from  the  merchant  shipping  acts  was  overruled.  (,/)  This 
case  seems  to  have  been  thought  by  other  judges  open  to 
doubt.  (A*) 

§  1539.  It  is  needless  to  remark  that  foreign  ships>re 
entirely  outside  the  observations  hitherto  made.  As  re- 
gards contracts  for  the  sale  of  such  ships,  or  shares  in  them,. 
the  case  of  Hart  v.  Herwig(Z)  may  usefully  be  consulted.  ,  ^ 

U)  Armstrong  v.  Armstrong,  21  Beav.,  71,       (l)  L.  R.  8  Ch.,  860;  and  see  observations 
78.  on  this  case,  supra,  §  1L6. 

(k)  Parr  v.  Applebee,  7  De  G.  M.  &  G.,  585. 
Combes  v.  Mansfield,  3  Drew.,  193. 


688        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 


CHAPTER  V. 

OF  CONTRACTS  FOR  SEPARATION  DEEDS. 

§  1530.  It  seems  clear  that  a  contract  providing  for  the 
separation  of  husband  and  wife  at  a  future  time  is  against 
public  policy,  and  will  not  be  enforced  by  the  court ;  and 
further  that  any  instrument  which  provides  for  a  present 
separation,  but  also  prospectively  looks  forward  to  the 
parties  living  together  again,  and  then  to  a  future  separation, 
is,  so  far  as  it  provides  for  that  future  separation,  equally 
unenforceable,  {a) 

§  1531.  The  jurisdiction  of  courts  of  equity  to  enforce 
the  specific  performance  of  contracts  for  present  separation, 
by  the  execution  of  proper  deeds  of  separation,  was  estab- 
lished in  the  House  of  Lords,  after  a  learned  argument 
against  it,  in  the  case  of  Wilson  v.  Wilson,  (&)  where  Lord 
Cottenham  showed  .that  the  law  does  not  now  consider  a 
contract  for  present  separation  so  contrary  to  public  policy  as 
to  make  void  all  arrangements  of  property  arising  out  of  it. 

§  153^.  In  order  to  enable  the  court  thus  to  interfere, 
there  must  of  course  be  a  valid  contract..  It  is  essential  to 
this  that  the  contract  be  between  persons  capable  of  con- 
tracting, and  therefore,  on  the  ground  of  a  husband's 
general  inability  to  contract  with  his  wife  without  the  inter- 
vention of  some  third  jDcrson,  it  has  been  supi^osed  that  a 
simple  contract  between  them  to  live  separate  will  not  be 
enforced  by  the  court,  (c) 

§  1533.  In  more  than  one  case,  however,  Lord  Hather- 
ley  has  expressed  an  opinion  that  a  wife  suing  her  husband 
for  a  divorce  is  in  a  position  to  contract  with  him,  without 
the  intervention  of  a  trustee,  for  the  abandonment  of  the 
suit  in  consideration  of  an  annuity  to  be  paid  by  him.  {cl) 

(a)  See  per  Lord  Eldon  in  Westmeath  v.  (c)  Hope  v.  Hope,  22  Beav.,  8  De  G.  M.  & 

Salisbury,  5  Bli.  N.  8,366,367;  Earl  of  West-  G.  731;   Wilkes.  3  Dick.,    791;  Walrond  v. 

meath  V.  Oountess  of  Westmeath,  Jac,  142.  Wahond,  John.  IS. 

Of.  Woodgate  v.   Watson,  in    C.   A.,    16th  (d)  Vansittart  v.  Vansittart,  4  K.  &  J.,  62; 

November,  1880.  Nicholl  v.  Jones,  L.  R.  3  Eq..  696;  Gibbs  v. 

(6)  1  H.  L.  C,  538,  affirming  S.  C.  14  Sim.,  Harding,  L.  R.  5  Ch.,  336,  affirming  S.  C.  L. 

405;  Fletcher  v.  Fletcher.  3  Cox.  99;  Gibbs  R.,  8Eq.,490. 
V.  Harding,    L.    11.   8   Eq..  49il;    5   Ch  ,  336; 
IJucknell  v.  Bucknell,  7  Ir.  Ch.  R.,  130. 


CONTRACTS   FOR   SEPARATION   DEEDS.  689 

And  in  the  case  of  Besant  v.  Wood(d)  Jessel,  M.  R.,  adopted 
this  view,  holding  that  a  married  woman  must  take,  as  inci- 
dent to  her  undoubted  right  to  sue  (by  a  next  friend,  or 
even  alone),  for  divorce  or  restitution  of  conjugal  rights, 
the  right  to  contract,  i.  e.,  to  compromise  her  suit ;  that  as 
a  necessary  corollary  to  the  right  to  sue,  she  must  have  the 
right  to  contract  not  to  sue  ;  and  that  therefore  she  can  en- 
ter into  a  valid  and  enforceable  contract  to  live  separate  and 
^part  from  her  husband.' 

§  1534.  There  must  also  be  a  good  consideration  :  and  as 
in  contracts  for  separation  this  is  sometimes  peculiar,  it  will 
be  well  very  briefly  to  allude  to  a  few  of  the  cases." 

§  1535.  It  has  been  decided  that  the  staying  a  suit  in  the 
Ecclesiastical  court  for  nullity  of  marriage,  on  the  ground 
of  impotency  of  the  husband,  is  a  sufficient  consideration 
as  against  him :(/)  and  where  the  husband  had  so  behaved 
as  that  the  wife  might  have  obtained  a  divorce  a  mensd  et 
thoro,  and  she  agreed,  instead  of  prosecuting  her  right,  to 
accept  maintenance  from  the  husband,  this  was  held  a  good 
consideration,  {g)  A  good  consideration  is  also  afforded  by 
an  engagement  by  the  trustees  to  indemnify  the  husband 
against  the  wife's  debts  ;(y^)  or  even  by  a  covenant  to  that 

(«)  L.  B.  12  Ch   D.,  622;  cf.  Marshall  v.  Mar-  (h)  Stephens  v.  Olive,  2  Bro.  C.  C,  90;  Karl 

shall,  5  P.  D.,  19.  of  Westmeath  v.   Countess  of  Westmeath. 

(/)  Wilson  V.  Wilson,  1  H.  L.  C,  538;  S.  Jac,  126,  141;  Elsworthy  v.  Bird,  2  S.  &  S  . 

€.  U  Sim.,  405.  372. 

{g)  Hobbs  v.  Hull,  1  Cox,  445. 

'  There  is,  to  say  the  least,  considerable  confusion  in  the  cases  on  this  point. 
It  may,  however,  be  laid  down  that  courts  of  equity  will,  on  no  occasion  what- 
ever, enforce  articles  of  separation  by  decreeing  a  continuance  of  the  separa- 
tion. Wilkes  V.  Wilkes,  2  Dick.  R,  791;  Worrall  v.  Jacob,  3  Merriv.,  267; 
Westmeath  v.  Westmeath,  Jac.  R.,  126;  St.  John  v.  St.  John,  11  Ves.,'  529; 
Frampton  v.  Frampton,  4  Beav.,  287;  The  People  v.  Mercein,  8  Paige,  45.' 
But  it  seems  that  a  contract  for  separation  between  husband  and  wife  will  be 
enforced  by  the  chancellor  upon  proof  that  there  was  such  a  cause  for  separa- 
tion as  would  have  authorized  the  court  to  grant  a  divorce.  McCrocklin  v. 
McCrocklin,  2  B.  Monr.,  370.  And  equity  will  not,  upon  slight  proof  of  con- 
ciliation, set  aside  articles  of  separation,  however  much  disposed  chancery  may 
be  to  the  adjustment  of  difficulties  of  this  kind.  Therefore,  in  Heyer  v.  Bur- 
ger, 1  Hoff's.  Ch.,  1,  where,  after  articles  of  separation,  a  casual  intercourse, 
between  the  husband  and  the  wife,  had  taken  place,  but  upon  a  mere  friendly 
footing,  without  cohabitation,  for  three  or  four  days,  and  loose  expressions  by 
the  wife  of  an  intention  to  destroy  the  articles,  and  an  expression  of  a  wish 
that  they  had  not  been  made,  were  held  not  to  be  proof  of  such  a  permanent 
reconciliation  and  agreement  to  live  together  as  would  warrant  the  court  in 
setting  aside  the  articles. 

''  A /ewe  covert  m&,j  make  a  valid  agreement  with  her  husband  to  discontinue 
a  suit  against  him  for  separation ;  but  she  cannot  make  a  binding  contract  with 
him  for  separation,  except  under  the  sanction  of  the  court.  Rogers  v  Rogers 
4  Paige,  516.  ' 

44 


690        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

effect  conditional  on  an  annuity,  which  was  agreed  to  be 
paid,  being  secured ;(/)  or,  as  it  seems,  by  a  covenant  of  a 
third  party  to  pay  the  husband' s  debts. (J )  So,  in  a  contract 
which  provided  ior  the  execution  of  a  separation  deed  to 
contain  all  proper  and  usual  clauses,  and  also  a  stipulation 
that  the  costs  of  the  deed  should  be  paid  by  the  husband 
and  wife's  father  in  moieties,  the  court  found  consideration 
not  only,  it  appears,  in  the  contract  as  to  the  costs,  but  also 
in  the  covenant  by  the  father  to  indemnify  the  husband, 
which  seems  to  have  been  held  to  be  a  usual  clause.  (A*) 

§  1«>36.  In  many  contracts  for  separation  there  have 
been  contained  provisions  as  to  the  care  of  the  children 
which  have  been  held  to  be  at  variance  with  the  law,  and 
so  have  formed  a  bar  to  the  performance  of  the  contract. 
For  the  law  of  England  gives  to  the  father  the  custody  and 
control  of  his  children,  and  casts  on  him  the  duty  of  caring 
for  them  and  seeing  to  their  education ;  and  this  duty  he 
can  neither  renounce  nor  delegate.  {I) 

§  1537.  On  this  ground  the  following  contracts  have 
been  held  incapable  of  performance :  a  contract  by  the 
father  to  allow  an  infant  son  to  remain  under  the  care  of 
his  mother  :(m)  a  contract  that  the  mother  should  have  the 
children  above  seven  years  of  age  :{)i)  and  a  contract  to  allow 
an  infant  daughter  to  remain  under  the  control  of  and  to  be 
educated  and  supported  by  her  mother. (o)  But  a  stipula- 
tion in  a  deed  that  her  children  should  remain  at  such 
schools  in  England  as  the  husband,  or  such  schools  else- 
where as  the  husband,  with  the  consent  of  the  wife,  should 
from  time  to  time  direct,  and  that  the  holidays  of  the  chil- 
dren should  be  passed  by  them  at  such  places  and  in  such 
manner  as  the  trustees  should  from  time  to  time  direct, 
having  regard  as  far  as  practicable  to  the  wishes  of  each  of 
them,  the  husband  and  wife,  was  held  by  Lord  Hatheiiey, 
reversing  the  decision  of  Lord  Komilly,  M.  R.,  to  be 
reasonable.  (^) 

§  1538.  An  alteration  in  this  branch  of  the  law  has 
recently  been  effected  by  statute  (36  Vict.,  c.  12).     The  2d 

(i)  Wellesley  v.  Wellesley,  10  Sim.,  256.  (»»)  Hope  v.  Hope.  8  De  G.  M.  &  G.,  731. 

(j  )  Wilson  V.  Wilson,  1  H.  L.  C.  538.  (n)  Vansittart  v.  Vanslttart,  4  K.  &  J.,  62. 

(k)  Gibbs  V.  Harding,  L.  R.  8  Eq.,  490;  5        (o)  Walrond  v.  Walrocd,  John.,  18 
Cii    336  (p)  Hamilton  V.  Hector,  L.  R.  13  Eq.,  511. 

(I)  Lord  St.  John  v.  Lady  St.  John,  11  Ves.,  6  Ch.,  701. 
525;  Lord  Weetmeath's  case,  Jac,  251  n. 


CONTRACTS  FOE  SEPARATION  DEEDS.        691 

section  of  this  act  enacts  that  no  agreement  contained  in 
any  separation  deed  made  between  the  father  and  mother  of 
an  infant  or  infants  shall  be  lield  to  be  invalid  by  reason 
only  of  its  providing  that  the  father  of  such  infant  or 
infants  shall  give  up  the  custody  or  control  thereof  to  the 
mother ;  provided  always  that  no  court  shall  enforce  any 
such  agreement  if  the  court  shall  be  of  the  oj^inion  that  it 
will  not  be  for  the  benefit  of  the  infant  or  infants  to  give 
effect  thereto. 

§  1539.  It  will  be  observed  that  this  enactment  apjDlies 
in  terms  only  to  agreements  contained  in  deeds,  and  not  to 
contracts  to  execute  separation  deeds.  But  as  the  invalidity 
of  the  deed  itself  is  removed,  the  whole  objection  to  the 
specific  xierformance  of  the  contract  falls  also. 

§  1540.  The  questions  which  arise  on  specific  relief  with 
respect  to  the  stipulations  contained  in  deeds  of  separation 
do  not,  of  course,  fall  within  the  purview  of  this  treatise, 
which  relates  to  executory  contracts  only. 


692        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 


CHAPTER  VI. 

OF  CONTRACTS  TO  COMRPOMISE. 

§  1541.  The  court  will  specifically  enforce  private  com- 
promises of  rights  in  the  way  in  which  it  will  any  other 
contracts  ;  and,  inasmuch  as  the  compromise  of  a  bond  fide 
claim  to  which  a  person  believes  himself  to  be  liable,  and  of 
the  nature  of  which  he  is  aware,  is  a  good  consideration  for 
a  contract,  the  court,  in  enforcing  the  compromise,  will  not 
inquire  into  the  validity  of  the  claim  on  which  it  is 
founded,  (a) 

§  154S.  Where  the  compromise  sought  to  be  enacted  re- 
lated to  proceedings  in  another  court,  it  was  manifest  that 
the  Court  of  Chancery  could  only  entertain  jurisdiction  on 
a  bill  filed. (6)  But  where  the  primary  litigation  was  also 
in  the  Court  of  Chancery,  the  question  arose  whether  the 
compromise  could  be  enforced  in  the  original  suit,  by  an 
interlocutory  proceeding  in  it,  or  only  by  a  fresh  suit,  based 
on  the  compromise. 

§  1543.  It  seems  that  where  the  immediate  interference 
of  the  court  was  necessary  to  give  effect  to  the  contract,  as 
where  a  party  to  the  contract  was,  but  for  it,  liable  to  an 
immediate  attachment,  there  the  court  would  to  that  extent 
interfere  to  execute  the  contract  in  the  original  suit.' 

§  1544.  Further,  there  is  authority  to  show  that,  where 
all  the  parties  to  the  compromise  were  parties  to  the  original 
suit,  and  the  equity  arising  out  of  the  compromise  was  of 

(a)  Attwood  T.  Anon..  1  Russ.,  353.  (6)  See,  for  example,  Nicholl  v.  Jones,  L. 


•  The  compromise,  to  be  upheld  by  a  court  of  equity,  must  relate  to  a  doubt- 
ful claim;  where  the  claim  is  undisputed,  payment  of  a  part  will  not  discharge 
the  rest  for  want  of  consideration.  Blanchard  v.  Noyes,  3  N.  H.,  518;  Sey- 
mour V  Mintern,  17  John,,  169;  Wheeler  v.  Wheeler,  11  Vt.,  60;  Geiser  v. 
Kershner,  4  Gill.  &  Johns.,  305;  State  v.  Payson,  37  Me.,  361.  As  to  family 
disputes  and  settlements,  see  Gordon  v.  Gordon,  3  Swanst.,  400;  Stapleton  v. 
Stapleton,  2  Whart.  &  Tucker's  Eq.  Cas.,  note;  Bailey  v.  Wilson,  1  Dev.  & 
Batt.  183;  Price  v.  Winston,  4  Munf.,  63;  Waikins  v.  Watkins,  24  Ga.,  412; 
Fulton  V.  Smith,  27  id.,  413;  Smith  v.  Smith,  36  id.,  184;  Puller  v.  Ready,  2 
Ark.,  587;  Mercier  v.  Mercier,  50  Ga.,  546.  The  agreement  to  settle  a  family 
dispute  must  be  final  to  be  enforced;  it  must  silso  be  complete  in  itself.  John- 
son V.  Johnson,  40  Md.,  189;  Wister's  App.,  81)  Pa.  St.,  484. 


CONTRACTS   TO   COMPROMISE.  693 

the  same  nature  as  the  original  equity,  as  where  an  account 
was  to  be  taken  alike  under  the  original  suit  and  under  the 
compromise — where  the  whole  matter  was  before  the  court, 
and  the  acts  to  be  done  were  simple— there  the  court  might 
enforce  the  compromise  by  interlocutory  proceeding  in  the 
original  suit.(c) 

§  1545-  But,  before  the  judicature  acts,  if  not  in  all 
other  cases,  at  least  in  all  cases  where  the  contract  to  com- 
promise went  beyond  the  ordinary  range  of  the  court  in  the 
existing  suit,  or  the  equity  sought  to  be  enforced  was 
different  from  that  on  the  record,  or  the  contract  was  dis- 
puted, or  the  right  to  have  it  enforced  in  the  suit  was  dis- 
puted, or  the  parties  were  not  identical,  there  the  proper 
course  of  proceeding  was  by  bill  for  the  specific  performance 
of  the  contract  to  compromise. (cZ)' 

§  1546.  In  the  litigation  which  arose  out  of  the  will  of 
Mr.  Samuel  Swinfen,  the  mode  of  enforcing  a  compromise 
entered  into  by  counsel  was  much  discussed,  as  well  as  the 
authority  of  counsel  to  bind  his  client  to  a  compromise. 
The  original  proceeding  was  a  suit  in  chancery  by  the  heir 
of  one  of  the  next  of  kin,  for  the  purpose  of  securing  the 
testator's  real  and  personal  estates  whilst  proceedings  were 
being  taken  to  set  aside  the  will  on  the  ground  of  the  want 
of  testamentary  capacity.  The  will  gave  the  property  to 
Mrs.  Swinfen,  the  widow  of  the  testator's  son.  Lord 
Romilly,  M.  R.,  directed  an  issue  demsamt  ml  non,  in 
which  Mrs.  Swinfen  was  plaintiff'  and  the  heir  was  defend- 
ant During  the  trial  at  Stafford  the  leading  counsel  for 
the  plaintiff  and  for  the  defendant  signed  a  memorandum  of 

ic)  Dawson  v  Newsome,  2  Giflf.,  272.    The  ton,  9  Ha.,  65;  Richardson  v.  Eyton,  2  De  G. 

Court  of  CJhancery  woul(i  not  enl'orce  a  con-  M.  &  G.,  79;  Pryer  v.  Gribb.e,  L.  K.  10  Ch., 

tract  for  compromise  between  an  infant  and  634;  which  seem  to  overrule  the  dictum   of 

an  adult,  there  being  no  mutuality  :  per  Lord  Lord  Eldon  in  Kowe  v   Wood,  IJ .  &  W  .,337, 

J^anedale,  M    R  ,  in  Hargrave  v.  Margrave,  and  the  c.se  of  Tebbutt  v.  Potter,  4  Ha.,  164. 

12  Heav.,  411.  See,  also,  King  v.  Pinsoneauli,  L.  R.  6  P.  C  , 

(rf)  Forsvth  V.  Manton,  5  Mad  ,  78;  Wood  245. 
V.  Rowe,  2  Bli.,  595,617;  Askew  v.  Milling- 

'  The  compromise  of  doubtful  and  conflicting  rights  and  claims  is  a  good  and 
sufficient  consideration  to  uphold  an  agreement,  and  highly  favored  at  law. 
Zane  v.  Zane,  6  Munf.,  406;  Taylor  v.  Patricli,  1  Bibb.  1()8;  Fisher  v.  May.  2 
id.,  448;  Mills  v.  Lee,  6  Monr..  97;  Hoge  v.  Hoge,  1  Watts;  Covode  v.  M'Kel- 
vey  Addis.,  56;  O'Keyson  v.  Barclay,  2  Penn.,  531;  Mclntire  v.  Johnson,  4 
Bibb,  48;  Chamberlain  v.  M'Clurg,  8  Watts  &  Serg.,  31;  Moore  v.  Fitzwater, 
2  Rand.,  442;  Bailey  v.  Wilson,  1  Dev.  &  Bat.'s  Ch.,  182.  And,  therefore,  an 
agreement  between  a  creditor  and  a  third  person,  founded  on  a  valuable  con- 
sideration, to  compromise  the  claim  of  the  former  against  his  debtor,  will  be 
specifically  enforced  by  a  court  of  equity. 


694        FRY  ON  SPECIFIC  PERFORMAIS^CE  OF  CONTRACTS. 

compromise,  including  a  stipulation  for  a  conveyance  of  the 
land  by  the  plaintiff  at  law  to  the  defendant  and  the  pay- 
ment by  the  defendant  to  the  plaintiff  of  an  annuity.  The 
memorandum  of  comiDromise  was  embodied  in  an  order  at 
Nisi  Prius,  and  afterwards  made  a  rule  of  the  court  of  com- 
mon pleas.  Mrs.  Swinfen  declined  to  perform  the  contract, 
as  made  without  her  authority  and  against  her  wishes, 
Thereupon  a  rule  nisi  for  an  attachment  against  her  was 
obtained,  but  discharged  on  the  ground  of  want  of  evidence 
of  demand  of  performance  and  refusal,  (e)  A  second  ap- 
plication for  an  attachment  was  refused  because  one  of  the 
judges  of  the  court  of  common  pleas  doubted  the  authority 
of  counsel  to  bind  the  plaintiff  at  law.(/)  Thereupon  the 
defendant. at  law  and  original  plaintiff  in  equity  filed  a 
supplemental  bill  for  the  specific  performance  of  the  con- 
tract, or  in  the  alternative  that  another  issue  demsai)it  vel 
non  might  be  directed.  This  bill  was  dismissed  by  Lord 
Romilly,  M.  R.,  without  costs,  on  the  ground  of  want  of 
authority  of  counsel  :(,.7)  and  this  decision  was  affirmed  by 
Knight  Bruce  and  Turner,  L.  J.  J.,(/0  on  the  ground  that, 
even  if  the  plaintiff  at  law  was  bound  at  law,  the  contract 
was  not  one  of  which,  under  the  circumstances,  specific  per- 
formance should  be  decreed.  Mrs.  Swinfen  subsequently 
brought  an  action  ag'ainst  her  leading  counsel  (then  Lord 
Chelmsford)  for  damages,  but  failed. (/) 

§  1547.  The  judicature  act,  1873,  has  introduced  a  great 
improvement  in  this  practice.  By  section  24,  sub-section  7, 
the  court  has  in  every  cause  power  to  grant  all  such 
remedies  whatsoever  as  any  of  the  parties  may  appear  to  be 
entitled  to  in  respect  of  any  claim  properly  brought  forward 
by  them  in  such  cause  ;  so  that  as  far  as  possible  all  matters 
so  in  controversy 'between  the  parties  may  be  completely 
and  finally  determined.  Accordingly  it  has  been  decided 
that  the  court  has  jurisdiction  to  stay  all  further  proceed- 
ings in  the  action  compromised,  in  cases  in  which  an  in- 
dependent suit  would  probably  have  previously  been 
necessary,  (y) 

(e)  Swinfen  v   Swinfen,  18  C.  B.,  485,  (i)  Swinfen  v   Lord  Chelmsford,  5  H.  &  N., 

(/)  S.  C.  1  C    B.  N.  S.,  3(;4  890. 

(fir)   Swinfen  V.  Swinfen,  24  Beav.,  549.  (j)  Compare  Eden  v.  Naish,  7  Ch.  1).,  781, 

(A)  S.  C.  2  De  G.    &  J.,  381.    Cf.  HoU  v.  an<l  Scully  v.  Lord  Dundonald,  8  Ch.  D.,  658, 

Jesee,  3Ch.  D.,  177;  Davis  v.  Davis,  13  Ch.  with  Pryer  v.  Gribble,  L.  R.   10  Ch  ,  540. 

D.,  861.  Distinguish  Gilbert   v     Endean,  9  Ch.  D  , 

259,  and  cf.  Davis  v.  Davie,  13  Ch.  D.,  861. 


AWAKDS.  695 


CHAPTER  VII. 

OF    AWAKDS. 

§  1548.  The  Court  of  Chancery,  in  many  cases,  decreed 
the  specific  performance  of  awards,  though  not  made  rules 
or  orders  of  the  court,  for  the  performance  of  some  specific 
thing,  as  to  convey  an  estate,  assign  securities,  or  the 
like  ;(a)  but  not,  it  would  seem,  awards  simply  to  pay 
money. (Z>)  The  court  thus  decreed  their  performance  "be- 
cause," to  use  Lord  Eldon's  language,  "  the  award  sux3poses 
an  agreement  between  the  parties,  and  contains  no  more 
than  the  terms  of  that  agreement  ascertained  by  a  third 
person. "( 6*)' 

§  1549.  Lord  Hardwicke(r7)  seems  to  have  laid  it  down 
that  a  bill  to  carry  an  award  into  execution,   where  there 

(rt)  Norton  v.  Mascall,  2  Verne.,  24;  Hall  v.  per  Turner,  L.  J.,  in  Nickels  v  Hancock,  7 

Hardy,  3  P.  Wms.,  Is7;  Walters  v.  Morgan,  De  G.  M.  &  a.,  300. 

H  Cox.  369.  (d)  Thompson  v.  Noel,  1  Atk.,  60,  and  see 

(6)  Note  of  reporter,  3  P.  Wnis.,  190.  other  cases  cited  in  Russell  on  Awards  (5th 

(c)  In  Wood  V.  (iriflith,  1  Sw.,  54;  see  also  ed.),  548  et  seq. 

'  Courts  of  equity  will  geaerally  decree  the  specific  pevformance  of  awards. 
McNeil  V.  Magee,  5  Mason,  244;  Jones  v.  Boston  Mill  Corporation,  4  Pick.,  507; 
Cool  V.  Vick,  2  How,  (Miss.),  882;  Kirksey  v.  .Fike,  27  Ala.,  383.  And  the 
ground  on  which  the  court  interferes  to  decree  specific  performance  of  an 
award,  is,  that  the  award  is  an  agreement  between  the  parties  to  the  submis- 
sion, and  that  most,  if  not  all,  of  the  principles  regulating  specific  performance 
are  applicable.  If,  therefore,  the  arbitrator  exceeds  his  authority,  or  does  not 
decide  all  the  matters  submitted  to  him,  or  decide  something  which  cannot  be 
carried  out  consistently  with  the  intention  of  the  parties  as  shown  by  the  terms 
of  the  submission,  specific  performance  of  the  award  cannot  be  decreed,  as  the 
award,  to  that  extent,  does  not  embody  an  agreement  between  the  parties.  It 
seems,  also,  that  the  court  cannot,  in  such  a  case,  separate  that  part  of  the 
award  which  cannot  be  enforced,  and  decree  specific  performance  of  the  rest. 
JSickels  V  Hancock,  35  Eng  Law  and  Eq.,  'Sij'S;  McNeil  v.  Magee,  5  Mason, 
244;  Kirksey  v.  Fike,  27  Ala.,  383.  In  reference  to  the  specific  performance 
of  awards  to  simply  pay  money,  the  general  rule  of  this  country  seems  to  coin- 
cide with  that  of  England.  Turpin  v.  Banton,  Hardin,  312;  Storv  v.  Norwich 
and  Worcester  R.  R.  Co.,  2  Conn.,  94;  Babier  v.  Babier,  24  Maine,  42.  But 
in  Wood,  2  P.  &  H.  (Va  j,  442,  it  is  said  that  a  court  of  equity  has  jurisdiction 
to  enforce  specific  execution  of  an  award  concerning  real  estate,  or  of  an  agree- 
ment for  the  purchase  and  sale  of  real  estate,  notwithstanding  that  it  involves 
the  enforcement  of  an  award  to  pay  money.  It  is  clearly  not  the  rule  to  suffer 
the  ends  of  justice  to  be  defeated,  and  the  jurisdiction  of  equity  to  be  ousted, 
in  cases  of  hardship,  because  of  an  obligation  in  an  award  to  pay  monej'.  And 
probably  the  rule  is  the  same,  whether  the  hardship  arise  because  of  loss  of 
remedy  at  law,  or  the  inate  unconscionableness  of  the  award  itself.  Story  v. 
Norwich  and  Worcester  R.  R.  Co.,  24  Conn.,  94;  Vie'le  v.  Troy  and  Boston 
R   R.  Co.,  21  Barb.,  381.. 


696        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

was  no  acquiescence  in  it  by  the  parties  to  the  submission^ 
or  contract  by  them  afterwards  to  have  it  executed,  would 
not  lie.  But,  as  we  have  seen,  subsequent  cases  established 
that  the  jurisdiction  was  not  subject  to  these  restrictions. 

§  15^0.  The  fact  that  the  submission  had  been  made  a 
rule  of  the  common  law  court  created  no  impediment  to  its 
specific  performance  by  the  Court  of  Chancery,  (e)  though  it 
would  have  been  otherwise  in  a  suit  to  set  it  aside. (/) 

§  1551.  There  is  an  old  case  in  which  the  Court  of  Chan- 
cery specifically  enforced  an  award  not  binding  by  form  of 
law.(^)  But,  in  Blundell  v.  Brettargh,(7i)  Lord  Eldon  said 
he  had  met  with  no  authority  for  the  specific  performance 
of  an  award  by  arbitrators  appointed  for  the  valuation  of 
interests,  where  their  acts,  for  the  purpose  of  carrying  into 
effect  the  contract  for  an  award,  were  not  valid  at  law,  as  to 
the  time,  manner  or  other  circumstances,  unless  in  the  cases 
of  acquiescence  or  part  performance:  and  accordingly  in 
the  case  before  him  he  refused  specific  performance  of  a 
contract  to  sell  at  a  valuation,  which,  on  the  construction 
of  the  contract,  the  court  held  was  to  be  made  during  the 
lives  of  the  parties,  one  of  them  having  died  before  the 
award  was  made.' 

§  155^.  It  is,  however,  plain  that  by  mutual  abandon- 
ment of  some  provision  of  the  submission,  as  e.  ^.,  that 
limiting  the  time  for  the  award,  the  defendant  may  be  pre- 
cluded from  raising  in  a  court  of  equity  an  objection  which 
might  otherwise  prevail. (i) 

§  1553.  The  objection  arising  from  unreasonableness,  not 
of  the  submission  but  of  the  award  itself,  the  court  is  not 
willing  to  entertain ;  for  the  arbitrators  being  judges  of  the 
parties'  own  choosing,  it  has  been  held  that  the  award  can- 
not be  objected  to  by  either  of  the  parties,  on  the  ground  of 
its  being  unreasonable.  (,/)     This  principle  was  stated  and 

(e)  Wood  V.  Griffith.  1  Sw.,  43;    Hawks-  strictly  one  of  arbitration  and  award,  but 

worth  V.  Bramhall,  5  My.  &  Cr.,  281 ;  Black-  rather  of  contract  to  sell  at  a  valuation.    See 

ettv.  Kates.  2  H.  &  M  ,  270,  610;  reversed,  on  Kinneen  v   Persse,  7  Ir  Cli.  R.,  438. 

point,  L  R.  1  Ch.,  117.  (i)  Hawksworth  v.  Brammall,  5  My.  &  Cr.,, 

(/)  Auriol  V.  Smith,  T.  &  R.,  121.  281. 

(</)  Norton  V.  Mascall,  2  Vern.,  24.  {j)  Per  Lord  Hardwicke  in  Ives  v.  Met- 

(h)  17  Ves.,  232,  241.    This  case  was  not  calfe,  1  Atk.,  64. 

'  Although  an  award,  to  be  specifically  enforced,  must  be  binding  by  form  of 
law,  yet,  if  legally  void  by  an  apparent  non-compliance  with  the  terms  of  sub- 
mission, caused  by  a  mere  clerical  error,  it  will  be  enforced  in  equity,  unless  its 
performance  would  work  injustice.     Buys  v.  Eberhardt,  8  Mich.  (Gibbs),  524. 


AWAKDS.  69T 

acted  on  by  Lord  Eldon  in  Wood  v.  Griffith, (^)  where  his 
lordsliip  enforced  the  specific  performance  of  an  award 
which  ordered  the  sale  of  an  estate  under  circumstances- 
whicli  greatly  depreciated  its  value. 

§  1554.  Where,  on  the  other  hand,  the  award  is  more^ 
than  unreasonable,— where  the  award  is  in  excess  of  the 
authority  given  to  the  arbitrator,  the  court,  of  course,  re- 
fuses to  enforce  it.  In  a  case  that  came  before  Knight 
Bruce  and  Turner,  L.  JJ.,  the  award  was  objected  to  as  un- 
reasonable, but  it  was  contended  on  the  other  side  that  the 
cjurt  could  not  entertain  the  objection.  Turner,  L.  J.,  after 
expressing  his  dissent  from  the  observations  of  Lord  Eldon 
in  Wood  V.  Griffith,  (Z)  said,  "If  it  be  a  fair  subject  of  dis- 
cussion and  consideration,  whether  one  course  or  another 
course  be  the  right  one  to  be  taken  by  parties  who  have 
submitted  their  differences  to  arbitration,  and  have  said 
that  they  will  abide  by  the  decision  of  the  arbitrator,  I 
might  agree  that  the  Judgment  of  the  arbitrator  upon  that 
question  must  decide  the  point.  But  here  the  Judgment  of 
the  arbitrator  goes  to  the  length  of  destroying  the  right  of 
one  of  the  parties  to  the  agreement,  though  the  parties 
never  authorized  Mr.  Carpmael  to  decide  that  any  one  of 
them  had  no  right,  and  sliould  acquire  no  interest  in  the 
subject  in  dispute,  but  only  agreed  that  he  should  deter- 
mine the  mode  in  which  their  rights  and  interests  should  be 
regulated.  It  seems  to  me,  therefore,  that,  if  it  was  neces- 
sary to  decide  this  question  upon  the  point  of  unreasonable- 
ness, that  point  alone  would  be  sufficient  to  decide  it.'\m) 

§  1555.  The  interference  of  the  court  in  these  cases  being 
in  exercise  not  of  any  Jurisdiction  peculiar  to  awards,  but 
of  its  ordinary  Jurisdiction  as  applied  to  the  specific  per- 
formance of  contracts,  it  follows  that  many,  if  not  all,  the- 
principles  applicable  to  ordinary  actions  of  that  nature  must 
apply,  (tz) 

§  1556.  AVhere,  therefore,  the  contract  contained  in  the 
submission  is  such  in  its  character  as,  whether  from  the  un- 
reasonableness, unfairness  or  imprudence,  the  court  would 
not  specifically  enforce,  this  will  prevent  its  interference  in 
respect  of  the  award  founded  on  it.(o) 

(k)  1  Sw.,  43.    See  supra,  f  400.  (n)  Nickels  v.  Hancock,  7  De  G.  M.  &  G  ,. 

(i)  1  Sw.,  43.  300. 

(m)  Nickels  v.  Hancock,  7  De  G.  M.  &  G.,  (o)  S.  C.    See  lupra,  J  400. 
32S. 


698        FRY  ox  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

§  1557.  Nor  can  the  court  interfere  where  the  award  is 
excessive  or  defective  :  not  if  it  be  excessive,  for  so  far  the 
arbitrator  has  gone  beyond  his  authority,  and  there  is  no 
binding  contract  between  the  parties  :  not  if  it  be  defective, 
because  the  parties  had  contracted  to  be  bound  by  his  de- 
cision on  the  whole,  and  not  on  part  of  the  matters  submit- 
ted to  him.(;?) 

§  1558.  In  a  case  where  the  submission  was  of  all  mat- 
ters in  difference,  and  the  defendant  omitted  to  submit  ques- 
tions which  he  alleged  ought  to  have  been  decided,  he  was 
naturally  held  to  be  precluded  from  so  doing  by  the  course 
which  he  himself  had  pursued. (§') 

§  1559.  AYhere  the  award  is  uncertain  on  its  face,  a^nd 
that  uncertainty  is  not  removed  by  the  arbitrator' s  evidence, 
the  court  refuses  specific  performance  of  the  contract,  though 
the  plaintiff  may  waive  all  claims  beyond  the  award  as  con- 
strued against  him.(r) 

§  1560.  Where  the  plaintiff  has  first  sought  to  set  the 
award  aside,  it  is  doubtful  whether  he  can  afterwards  turn 
round  and  maintain  an  action  for  th^  specific  performance 
of  it,  especially  where  there  has  been  a  considerable  lapse 
of  time.  (5) 

§  1561.  The  cases  which  have  arisen  of  misconduct  or 
inipropriety  of  conduct  on  the  part  of  persons  appointed  to 
value  a  rent,  or  the  amount  of  purchase-money,  throw  light 
on^the  way  in  which  the  court  would  regard  like  miscon- 
duct on  the  part  of  persons  more  accurately  described  as 
arbitrators.  (?J) 

ip)  Nickels  v.  Hancock,  7  De  G.  M.  &  G.,  (s)  Blackett  v.  Bates,  L    R.  1  Ch.,  117,  re- 

3'JC!;  WabefleW  v.  Llanelly  Railway  and  Dock  versing  S  C.  2  H.  &  M  ,  2/0,  610. 

Co    3DeG  J   &S    11  i^)  See  Emery  v.  Wase,  8Ves.,  50o;  Chi- 

(g)  Hawk'sworth  V.  Brammall.  5  My.  &  Cr,,  Chester  v.  Mclntyre,  4  Bit  N.  S.,  78:  I'arken 

ogi'  V.  Woitby,  T.  &  R.,  306:  Ormes  v.  Beadel,  2 

"  (r)  Wakefield  v.    Llanelly   Railway   and  Gifl.,  166,  2  De  G.  F.  &  J.,  333. 
Dock  Co.,  De  G.  9.  &  S.,  11. 


CONTRACTS   TO    REFER  TO   ARBITRATION.  699 


CHAPTER  VIII. 

OF   CONTRACTS    TO    REFER    TO    ARBITRATION. 

§  1562.  With  regard  to  contracts  to  refer  to  arbitration, 
it  is  clear  tliat  tlie  coi»rt  will  not  entertain  actions  for  their 
specific  performance,"  a  principle  in  the  first  place,  it  seems, 
acted  upon  by  Lord*  Thiirlow  in  a  case  of  Price  v.  AVil- 
liams,(a)  and  which  has  been  since  well  established,  (^)  In 
one  case  Knight  Bruce,  and  Turner,  L.  J.  J.,  upon  this 
amongst  other  grounds,  refused  to  compel  the  specific  exe- 
cution of  a  bond  to  refer  to  arbitration,  (c) 

§  1563.  In  like  manner  we  have  seen  that,  where  there 
is  a  contract  to  buy  at  a  price  to  be  fixed  by  persons  to  be 
named,  the  court  can  neither  compel  a  defendant  to  name  a 
valuer,  nor  compel  a  valuer  to  value,  nor  compel  the  defend- 
ant to  sell  at  any  other  value. (rZ) 

§  1504.  There  is,  however,  a  case  before  L^^ach,  Y.  C, 
somewhat  briefly  reported  as  to  its  circumstances,  in  which, 
the  vendor  refusing  to  permit  the  referees  to  come  upon  the 
land,  the  court  compelled  him  to  permit  the  valuation,  (d)' 

(rt)  Referred  to  ill  6  Ves  .  SIS.  De  G.  M   &G.,8sO. 

(b)  Street  V.  liigby,   6  Ves.,  815;  per  Grant,  {d)  Wilks  v.  Davis,  3  Mer.,  507;  Darbey  v. 
M  R  ,  in  Gourlay  v     l>iike  of  Somerset,  19  Whitaker,  4  Drew  ,  134;  Vickers  v.  Vickers, 
Ve^.,429;   A  ear  v  MacUlew,  2  8.  &  s.,418;  L.  R.  4  Eq.,  .'5'29;  supra,  §  338  et  seq. 
Gervais  V    Ed«a.<ls,  2  Dr.  &  War  ,  80.    See  (e)  Morse,  v.  Merest,  6  Mad.,  26.    See  too 
too  Kussell  on  awards  (.^th  ed.),  C3  et  seq.  supra,  §  1125. 

(c)  South  Wales  Railway  Co.  v.  Wytlies,  5 


1  It  is  well  established  that  these  agreements  will  not  be  enforced.  And  it 
has  been  said  that  courts  of  equity  never  decree  the  specific  performance  of  any 
agreement,  when  the  decree  would  be  a  vain  and  imperfect  one;  liable  at  any 
moment  to  be  defeated  by  the  act  of  the  parties  themselves  Tobey  v.  The 
County  of  Bristol,  3  Story i^  800;  see,  also,  Connor  v.  Drake,  1  Ohio  St.  R.,  166. 

2  Connor  v.  Drake,  1  Ohio  St.,  166;  Tobey  v  County  of  Bristol,  3  Story, 
800-  Nnyes  v.  Marsh,  123  Mass.,  286  The  court  will  determine  what  is  a  fair 
value.  Dunnell  v.  Ketletas,  16  Abb.  Pr.,  205.  The  lease  made  it  optional 
with  the  lessor  to  pay  for  improvements  to  be  valued  by  arbitrators,  or  to  renew 
the  lease;  he  refused  to  do  either.  Held,  that  although  specific  performance 
could  not  be  decreed,  yet  as  the  court  had  acquired  jurisdiction  it  would  award 
compensation  for  the  value  of  the  improvements.  Hopkins  v.  Oilman,  22 
Wis.,  476. 

TJie  award  of  arbitrators  %oiU  he  enforced.'\  Specific  performance  of  an  award 
of  arbitrators  will  be  enforced;  e.g.,  that  land  be  conveyed,  a  boundary  line 
adopted,  securities  assigned,  or  a  lease  be  renewed  at  a  fixed  rent;  this  is  true, 
although  the  award  has  not  been  made  the  order  of  the  court,  and  although  the 
agreement  for  arbitration  names  a  penalty,  which  the  losing  party  offers  to 
pay.     Whitney  v.   Stone,  23  Cal.,  275.     An   award   supposes  an  agreement 


700        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

§  15^5.  Tliougli  the  court  will  thus  refuse  specifically  to 
enforce  references  to  arbitration,  an  inequitable  refusal  of  a 
plaintiff  to  make  such  a  reference  may  disentitle  him  to  the 
aid  of  the  court,  on  the  principle  that  he  who  seeks  equity 
must  do  equity.  Thus,  where  a  deed  was  executed  which 
created  a  lien  for  the  amount  of  a  solicitor's  bills  and  ad- 
vances, the  amount  of  which  was  to  be  settled  by  arbitra- 
tion, and  the  arbitrator  died  before  the  award  was  made ; 
in  a  suit  seeking  the  reconveyance  of  "the  property,  Alder- 
son,  B.,  held  that  the  contract  between  the  parties  was  com- 
posed of  tw^o  distinct  parts — the  first 'admitting  that  some 
balance  was  due  to  the  solicitor,  and  the  second,  a  contract 
for  a  specific  mode  of  ascertaining  that  balance  ;  that  the 
latter  part  alone  had  failed  ;  that  the  former  jmrt  remained 
entire,  and  that  the  court  would  not  decree  a  reconveyance 
without  the  plaintiff's  consenting  to  do  equity  by  having 
the  accounts  taken  by  the  master.  (/) 

§  1*166.  Moreover,  under  the  common  law  procedure 
act,  1854  (17  &  18  Vict.,  c.  125,  s.  11),  where  any  parties  to 
any  instrument  in  writing  thereafter  made  or  executed 
agree  to  refer  any  past  or  future  differences  to  arbitration, 
and  any  party  so  agreeing,  or  any  person  claiming  under 
such  party,  nevertheless  commences  any  action  against  the 
other  party  or  parties,  or  any  of  them,  or  against  any  per- 
son claiming  under  him  or  them  in  respect  of  any  of  the 
matters  so  to  be  referred,  the  court  or  a  judge,  on  applica- 

(/)  Cheslyn  v.  Dalby,  2  Y.  &  C.  Ex.,  170. 


between  the  parties,  and  contains  no  more  than  the  terms  of  that  agreement 
ascertained  by  a  third  person.  Penniman  v.  Rodman,  13  Mete,  382;  Thomp- 
son v.  Deans' 6  .Jones' Eq.,  22.  Where  the  award  is  valid,  both  parties  are 
concluded  by  it,  and  the  validity  of  the  partition  cannot  be  drawn  in  question.- 
Emans  V.  Emaus,  14  N  J.  Eq.,  114.  Specific  perlormance  of  an  award  will 
be  decreed  where  the  petitioner  cannot  obtain,  by  a  verdict,  all  that  it  was  the 
object  of  the  award  to  give  him  Kirksey  v.  Fike,  27  Ala.,  3^2;  Jones  v.  Bla- 
lock,  31  Ala.,  180.  But  an  award  will  not  be  supported,  merely  for  the  pay- 
ment of  money,  which  can  be  recovered  at  law.  or  by  the  ordinaiy  proceedings 
upon  the  award.  Turpin  v.  Banton,  Hardin  (Ky.),  312;  Howe  v.  Nickerson, 
14  Allen,  400;  Babier  v.  Babier,  24  Me.,  42;  contra,  see  Wood  v.  Shepherd,  2 
Patton  &  Heath  (Va.),  442. 

Discretion  as  to  awards.]  The  court  will  exercise  a  sound  discretion  in  the 
enforcement  of  awards,  and  equity  will  not  interfere  when  objections  to  the 
enforcing  of  an  award  appear  upon  its  face,  or  otherwise.  Backus'  Appeal,  58 
Pa.  St.,  186. 

Lieu  of  an  award.']  Where  the  amount  tixed  by  an  award  is  to  be  a  lien 
upon  property,  the  lien  attaches  upon  the  making  of  the  award  and  furnishes 
an  element  of  equity  jurisdiction.  Memphis  and  Charl.  R.  R.  Co.  v.  Scruggs, 
50  Miss.,  284;  see  Overbee  v.  Thrasher,  47  Ga.,  10. 


CONTRACTS   TO    KEFER   TO    ARBITRATION.  701 

tioii  by  the  defendant  or  defendants,  or  any  of  them,  after 
appearance  and  before  pleading,  upon  being  satisfied  that 
no  sufficient  reason  exists  why  such  matters  cannot  be  or 
ought  not  to  be  referred  to  arbitration  according  to  the 
agreement,  and  that  the  defendant  was,  at  the  time  of  bring- 
ing the  action,  and  still  is,  ready  and  willing  to  join  in  all 
necessary  and  proper  acts  for  causing  such  matters  to  be 
decided  by  arbitration,  may  stay  all  proceedings  in  the  ac- 
tion on  such  terms  as  to  the  court  or  judge  may  seem  fit. 
Under  this  enactment  orders  have  been  made  which  have 
indirectly  the  effect  of  compelling  the  plaintiff  specifically 
to  perform  the  contract  to  refer  to  arbitration.  (<7). 

(flf)  For  cases  under  this  section  in  the  Court  Gillett  v.  Thornton.  L.  R.,  19  id.,  599;  New- 

of  Chancery  and  in  the  Chancery  Division,  ton  v.  Taylor,  id.,  14;  Law  v.  Garrett,  8  Ch. 

see  Willesford  v.  Watson,  L    R.  14  Eq.,  572;  D.,  26. 
S  Ch.,  473;  Plews  v.  Baker,  L.  R  16  Eq.,  564; 


702        FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 


CHAPTER  IX. 

OF  CONTRACTS  NOT  TO  APPLY  TO  PARLIAMENT. 

§  liiHT.  The  court  lias  not  infrequently  been  asked  to 
enforce  the  specilic  performance  of  a  contract  not  to  apply 
to  Parliament,  by  means  of  an  injunction  restraining  such 
ai:)l)lication. 

§  1508.  It  is  perfectly  clear  that  a  Court  of  Equity  has 
power,  upon  a  proper  case  being  made  out,  to  enjoin  a  per- 
son from  petitioning  Parliament ;  for  the  court  merely  acts 
m  personam,  and  does  not  therefore  in  any  way  interfere 
with  the  proceedings  of  Parliament  \{a)  but  what  is  a  proper 
case  for  this  interference  of  the  court  is  a  question  of  con- 
siderable difficulty.  It^  has  even  been  said  that  it  is  diffi- 
cult to  conceive  or  define  what  are  the  cases  in  which  it 
would  be  proper  for  the  court  to  exercise  its  undoubted 
power  of  restraining  any  person  from  making  an  improper 
ai)ijlication  to  Parliament.  (^) 

g  1500.  The  mere  fact  that  the  intended  application  to 
Parliament  will  abrogate  existing  rights  and  create  new 
ones,  can  give  no  right  to  such  an  injunction;  for  that 
would  be  to  restrain  parliamentary  interference  in  all  such 
cases. (c)  Nor  will  the  court  interfere,  even  where  for  the 
j)rotection  of  private  interests  a  contract  not  to  apply  to 
Parliament  has  been  entered  into,  provided  the  party 
making  the  application  to  the  legislature  may  urge  it  upon 
grounds  of  public  jjolicy,  of  which  Parliament  can  judge, 
but  a  court  of  equity  cannot. (cZ)  This  seems  to  apj^ly  to 
all  cases  in  which  the  application  is  in  soliciting  a  bill ;  for 
in  all  such  cases  grounds  of  a  2:>ublic  nature  may  be  urged. 

§  1570.  Accordingly,  in  a  case  where  the  defendant  com- 
pany contracted  with  the  plaintiff  company  not  to  make 

(a)  AVare  v.  Grand  .Tunction  AVaterworks  See,  too,  Steele  v.  North  Metropolitan  Rail- 
Co.,  2  R  &  My,  470,  483;  Heathcote  v.  North  way  Co.,  L  R.  i  Ch.,  237. 
Staffordbhire  Railway  Lo.,  2  Mac.  &  G.,  100;  (c)  Heathcote  v.  North  Staffordshire  Rail- 
Lancaster  and  Carlisle  Railway  Co  v.  North-  way  <  o,  2  Mac.  &  G  ,  HO. 
Western  Railway  Co  ,  2  K.  &  J.,  293.  See  (tit)  Lancaster  and  Carlisle  Railway  Co.  f. 
also,  Att'y-Gen.  v.  Manchester  and  Leeds  Northwestern  Railway  Co.,  2  K.  <fc  J.,  293. 
Railway  Co.,  1  Rail.  C  ,  486.  .■?ee,  too,  per  Bacon,  V.  C,  in  Telford  v.  Met- 

(6)  Re  London,  Chatham  and  Dover  Rail-  ropolitan  lioard  ol  Works,  L.  R.  13  Eq  ,  594. 
■way  Arrangement  Act,  L.  R.  5  Ch,.  671,  679. 


CONTRACTS  NOT  TO  APPLY  TO  PARLIAMENT.     703 

any  line  connecting  their  respective  railways,  except  one 
which  had  been  already  applied  for  by  the  defendants,  and 
in  consideration  of  this  the  plaintiffs  agreed  to  support, 
instead  of  opposing  (as  they  had  previously  done)  the  ap- 
plication of  the  defendants  for  the  last-mentioned  line,  and 
the  plaintiffs  j)erformed  their  part  of  the  contract,  and  the 
defendants'  application  was  successful,  the  court,  neverthe- 
less refused  to  restrain  the  defendants  from  applying  to 
Parliament  in  contravention  of  their  contract,  considering 
that  such  an  application,  if  successful,  would  be  so  on  pub- 
lic grounds,  of  which  the  court  could  not  judge,  and  that, 
if  it  were  rejected,  the  breach  of  the  contract,  if  a  legal  one, 
might  be  compensated  for  in  damages,  (e) 

§  1571.  The  only  case,  therefore,  in  which  the  court 
would  interfere  apjoears  to  be  when  the  applicant  is  acting 
on  private  grounds  only.  "It  might  well  be  conceived," 
said  Lord  Hatherley  (then  Wood,  V.  C.)  in  one  case,  "that 
where  a  tenant  for  life  had  stipulated  that  he  would  not 
apply  for  a  private  act,  he  might  be  restrained  from  so 
doing.  "^^  ^'  *  If  a  man  had  made  an  agreement  to  buy 
a  house  or  field,  and  afterwards  found  the  agreement  incon- 
venient, and  wished  to  apply  to  Parliament  to  set  it  aside, 
that  possibly  might  be  a  case  in  which  the  court  would 
interfere,  and  say  that  this  not  being  a  matter  of  public 
policy,  the  man  should  not  make  the  application. "(/') 

{€)  Lancaster  and  Carlisle  Railway  Co.  v.        (/)  Steele  v.  North  Metropolitan  Tramway 
Northwestern  Railway  Co.,  2  K.  &  J.,  293.         Co.,  L.  K.  2  Ch.  238  n. 


704        FRY  ox  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 


CHAPTER  X. 

OF   CONTRACTS   TO   INDEMNIFY. 

§  157^1.  Agreements  for  indemnity,  whether  taking  the 
form  of  a  covenant  or  of  .an  executory  contract,  appear 
equally  to  attract  the  jurisdiction  of  the  court  by  way  of 
specific  relief,  (a)  All  or  most  of  the  reported  cases  appear 
to  be  on  executed  contracts. 

§  1573.  A  contract  by  A.  to  indemnify  B.  against  a  pay- 
ment is  not  broken  till  the  payment  has  been  made:  and 
when  made  by  B.,  he  might,  before  the  judicature  acts, 
have  recovered  the  amount  paid  by  an  action  at  law,  and 
have  obtained  in  that  way  all  that  he  needed. 

But  where  the  contract  by  A.  is  to  indemnify  B.  against 
all  claims  and  demands  of  C,  there  is  a  breach  so  soon  as 
C.  makes  the  claim, (&)  and  B.  may  here  usefully  invoke  the 
^id  of  a  court  of  equity  to  compel  A.  to  satisfy  his  demand 
to  the  relief  of  B.,  and  thus  specifically  to  perform  the  con- 
tract :  and  accordingly,  in  such  cases,  the  Court  of  Chancery 
entertained  jurisdiction. 

§  1374.  In  the  case  of  Ranelaugh  v.  Hayes  (c)  the  plain- 
tiff assigned  certain  shares  to  the  defendant,  and  the  defend- 
ant covenanted  with  the  plaintiff  to  indemnify  him  against 
(amongst  other  things)  all  demands  in  respect  of  the  shares : 
the  plaintiff  was  prosecuted  for  a  demand  by  the  crown, 
and  accordingly  prayed  specific  performance,  which  was 
granted.  The  decree  extended  not  only  to  the  claim  then 
advanced  but  to  future  demands,  and  directed  the  master, 
toties  quoties  any  breach  should  happen,  to  report  it  to  the 
court.  It  is  conceived  that  such  a  judgment  could  not  now 
be  pronounced  as  regards  future  and  repeated  acts.((^) 

§  157o.  In  a  much  more  recent  case,  company  A  assigned 
its  business  to  company  B,  and  company  B  covenanted  with 
company  A  that  the  shareholders  of  company  A  should,  out 

(a)  See  per  Kindersley,  V.  C,  in  London  v.  Young,  3  B.  &  Al.,  521;  Penny  v.  Foy,  8 

and  South- Western  Railway  Co.  v.  Humph-  B.  &  C,  11. 

rey,  6  W.  R.,  784.  (c)  1  Vern.,  189. 

(6)  Warwick  v.  Richardson,  10  M.  &  W.,  {d)  See  Lloyd  v.  Dimmack,  7  Ch.  D.,  398 
284;  Carr  v.  Roberts,  5  B.  &  Ad.,  78;  Taylor 


CONTRACTS   TO   IXDEilNIFY.  705 

of  tlie  funds  of  company  B,  be  indemnified  against  all  lia- 
bilities in  respect  of  company  A.  Actions  and  suits  were 
instituted  by  various  persons  against  company  A  in  respect 
of  claims  against  which  the  indemnity  had  been  given,  and 
these  were  not  paid  by  company  B.  Company  A  thereupon 
sued  for  and  obtained  a  declaration  of  the  liability  of  com- 
pany B  to  perform  their  indemnity,  (e) 

(e)  Anglo-Australian,  etc.,  Co.  v.  British    Provident,  etc.,  Society,  3  Giff..  521;  4  De  G. 

F.  &  J.,  341.    See,  also.  Story  Eq.  Jur.,  §  850. 

45 


ADDITIONAL   NOTE.  707 


ADDITIONAL  NOTE. 


The  iDeculiarly  Englisli  cliaracter  of  the  jurisdiction  in  spe- 
cific performance,  has  been  adverted  to  above  (page  3,  §  6). 
The  fact  that  no  such  jurisdiction  existed  in  the  Roman 
law,  or  exists  (for  instance)  in  the  law  of  France,  ai)pears 
remarkable  :  and  the  following  further  information  with  re- 
gard to  the  French  law  may  not  be  uninteresting.  The 
clauses  of  the  Code  Civil  which  bear  upon  the  point  are 
the  following : 

"  1142.  Toute  obligation  de  faire  ou  de  ne  pas  faire  se  resout  en 
dommages  et  interets,  en  cas  d'inexecution  de  la  part  du  debiteur. 

"  1143.  Neanmoins  le  creancier  a  le  droit  de  demander  que  ce  qui 
aurait  ete  fait  par  contravention  a  I'engagement  soit  detruit;  et  il 
peut  se  faire  autoriser  a  le  detruire  aux  depens  du  debiteur,  sans 
pr^'judice  des  dommages  et  interets,  s'il  y  a  lieu. 

"  1144,  Le  creancier  peut  aussi,  en  cas  d'inexecution,  etre  autorise 
a  faii'e  executer  lui-meme  I'obligation  aux  depens  du  debiteur." 

Through  the  kindness  of  Professor  Holland,  of  Oxford,  I 
have  received  the  following  note  explanatory  of  the  subject 
from  M.  Renault,  Advocate  and  Professor  of  Law  at  Paris : 

"  Le  debiteur  peut-il  etre  tenu  a  une  execution  en  nature  (specific 
performance),  ou  peut-il  etre  seulement  condamne  a  des  dommages- 
interets  ? 

"Les  principes  sont  poses  dans  les  articles  1142,  1143,  et  1144,  du 
Code  Civil.  Ces  trois  articles  doivent  etre  combines,  et  il  en  resulte 
une  doctrine  qui  peut  etre  resumee  de  la  maniere  suivante  : 

"La  formule  de  I'art.  1142  est  trop  geuerale  :  ce  n'est  pas  toute 
obligation  de  faire  ou  de  ne  pas  faire  que  se  resout  necessairement 
en  dommages-interets,  c'est  celle  dont  I'execution  effective  est  im- 
possible par  voie  de  contrainte;  parce  que  cette  execution  forcee  ne 
pourrait  etre  obtenue  sans  porter  atteinte  a  la  liberte  individuelle 
du  debiteur,  sans  exercer  une  pression  materielle  sur  sa  personne. 
Ainsi  un  acteur  a  promis  a  un  directeur  de  chanter  sur  son  theatre, 
ou,  au  contraire,  de  ne  pas  paraitre  sur  une  sc6ne  rivale  ;  s'il  refuse 
de  tenir  ses  engagements,  le  creancier  ne  pourrait  obtenir  I'execution 


708        FEY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

effective  sans  Gtre  autorise  a  exercer  sur  la  personue  de  son  debiteur 
des  violences  physiques  pour  I'amener  de  force  sur  son  theatre,  ou 
pour  IV'carter  du  theatre  rival.  Ces  violences,  cette  contrainte 
physique  dont  les  resultats  ne  pourraient  etre  que  fort  imparfaits, 
sont  contraires  a  I'esprit  et  an  texte  de  toute  notre  legislation,  et 
c'est  dans  ces  cas-lu  que  I'obligation  se  resout  necessairement  en 
dommages-interets. 

"  Un  proprietaire  a  promis  a  son  voisin  d'abattre  des  abres  qu'il 
a  sur  son  propre  terrain,  et  qui  font  obstacle  a  la  vue  de  ce  voisin. 
Si,  se  repentant  de  cette  promesse,  et  dispose  a  faire  de  grands  sac- 
rifices d'argent  pour  conserver  ses  arbres,  le  debiteur  refuse  d'exe- 
cuter  son  obligation,  le  creancier  pourra  ne  pas  se  contenter  des 
dommages-interets  ;  il  obtiendra  I'autorisation  d'entrer  sur  le  fond 
de  son  debiteur,  et  de  faire  abattre  les  arbres, 

"Pour  les  details,  voir  le  Repertoire  de  Dalloz,  33"'  volume,  au 
mot  Obligation,  §  702  et  suivant.  Pothier,  Traite  des  Obligations, 
N°  146  et  suivant. 

It  is  curious  to  observe  the  contrast  presented  by  the 
English  and  French  laws  on  this  subject.  The  English  is 
more  careful  of  the  observance  of  contracts :  less  anxious 
for  the  liberty  of  the  subject.  The  French  law  is  more  care- 
ful of  liberty ;  less  solicitous  of  the  i^erformance  of  obliga- 
tion. The  same  jealousy  for  the  liberty  of  the  subject  which 
limits  the  jurisdiction  in  France,  was  urged  in  the  Common 
Law  Courts  against  specific  performance  in  chancery.     (See 

supra,  p.  8,  §  20.) 

hi.  c . 


INDEX. 


ABANDONMENT:  pase. 

of  contract 495,  537  n. 

delay  amounting  to 524 

evidtence  of 524 

{And  see  Bescission,  Waiver.) 

ABATEMENT: 

mode  of  calculation  of 589 

purchase-monej',  from 577,  586,  589 

purchaser's  right  to  enforce  contract  with 584 

rent,  of 496,  499,  589 

(And  see  Compensation.) 

ABSTRACT  OF  TITLE: 

condition  for  delivery  of 643 

effect  of  non-delivery  of 526,  643 

examination  of,  after  time  for  completion 583 

inquiry  as  to  perfectness  of 625 

perfect, 631 

retaining,  without  making  objections 618 

TIME  {q,  V.)  for  delivery  of 516 

verification  of 633 

when  complete 680,  631 

who  must  prepare 479  n. 

ACCEPTANCE: 

acts,  by ? 144,  150,  617  ei  seg. 

agent,  by  letter  of 250 

by  agent,  binds  principal 145  n. 

of  proposer,  communicated  to 145 

ambiguous 133 

communicated,  must  be 139,  145 

conditional 133,  135,  248 

constituting  contract 132 

delay,  without 139 

essentials  of 132 

executing  transfer,  by 581 

expression  of  hope,  with 138 

formal  contract,  referring  to 138,  249 


710  INDEX. 

ACCEPTANCE— (7on<jVi?/ed.  page. 

goods,  of 284 

inclosure,  referring  to  249 

indulgence,  granting • 138 

inferred  after  explicit  refusal •  •  •  143  n. 

institution  of  action,  by 142 

marriage,  evidenced  by 150 

name  of  purchaser,  of 670 

of  terms 132  ?i.,  130  n. 

new  term,  introducing 136 

what  is  not 138 

no  privity,  where 102 

not  receive 144 

nugatory  variation,  with 138 

parol 143 

PART  PERFORMANCE  {q,  V.)  by 151 

plain 133 

posting  letter,  by 145 

promise  of  representation  {q.  v.)  by  acting  on 14G 

RETRACTATION  {q.  V.)  before 134 

subject  to  title  being  approved 137,  248  n. 

terms  of  head-lease,  of 170 

TITLE  (q.  v.),  of 617 

unconditional 135 

unequivocal 133 

WITHDRAWAL  {q.  V.)  before 140 

without  variance  from  offer 136 

written 143 

{And  see  Proposal.) 
ACCIDENT: 

delay  arising  from • 642 

ACQUIESCENCE: 

breach  of  covenant,  in 528 

corporation,  by 235 

notice  of  refusal  to  perform,  in 529 

of  both  parties  in  non-completion  619 

payments  and  possession  not  amounting  to 532 

self-deception  of  buyer,  in  . . . .- 343 

variance  from  prescribed  mode  of  renewal,  in 196 

vendor's  proceedings  for  getting-in  estate,  in 626 

ACREAGE: 

abatement  for  deficiency  of,  refused ■ 591 

proportioned  to 589 

compensation  after  conveyance  for  deficiency  of 595 

ACT  OF  GOD: 

alternative  rendered  impossible  by 486 

delay  arising  from 643 

earthquake 449  n. 

restoration  precluded  by 857 


IISTDEX.  711 

ACTION:  PAGE. 

on  the  case 7 

equity  creates  no  right  of 13  n. 

ACTS  IN  CONTRAVENTION  OF  THE  CONTRACT: 

conduct  inconsistent  with  condition  of  sale,  by 473 

defense,  a 467 

evidence  of  agreement  to  rescind 467 

forfeiture,  which  would  have  worked 467 

gross  and  willful 468,  470 

LEASE  {q.  V.)  under  contract  for 467  et  seq. 

{And  see  Covenant.) 

notice  of  intention  to  resell 473 

railway  company,  by 473 

repair,  in  respect  of  covenants  to 467 

small  breaches  of  good  faith,  in  cases  of 473 

waste  468 

ACTS  OF  OWNERSHIP: 

acceptance  of  title  worked  by 618 

affecting  vendor's  lien 618 

before  knowledge  of  objection  to  title 618 

not  stated  in  the  bill 657 

PAYMENT  INTO  COURT  {q  V.)  On  the  ground  of 618,  656,  657 

receiver,  justifying  order  for 618 

waiver  of  objections  worked  by 617 

ACTOR: 

contract  by 412,  413 

ADMISSION: 

against  himself,  by  plaintiff 305 

date  of  lease,  as  to 472 

death  of  party  after  making 275 

evidence  not  required  after 303 

executors,  by 275 

mere,  of  contract 267 

pleadings,  in 274,  615,  616 

surviving  contractor,  by 275 

title,  of 274,  654 

administrator  does  not  guaranty  title  at  sale 451  m. 

ADOPTION: 

of  contract  by  third  party 156 

ADVOWSON : 

contract  for 343,  584,  589 

injunction  in  relation  to  sale  of 549 

AGENCY: 

contracts  of 45 

direct  evidence  of 259,  259  n.,  262  n. 

fact,  a  question  of 265 

inference  of 259 

issue  to  try  question  of 265 


712  INDEX. 

AG'ENCY— Continued.                                                                                   paqb. 
not  proved 117 

REPRESENTATION  (q.  V.)    of 25^ 

AGENT: 

act  of,  the  act  of  principal 115,  145  n. 

appointment  of 259,  318,  258  n. 

AUCTIONEER  {cj.  V.) 119,  120,  262  et  seq. 

authority  of 115,  257,  114  n. 

breach  of  duty  by 192 

claiming  to  have  contracted  for  his  own  benefit 117 

clerk  of 264 

communication  of  acceptance  to 144 

concealment  by 331 

contract  purporting  to  be  signed  by 257 

contracting  as  agent 113 

principal 113 

Crown,  for  the 117 

delegation  of  authority  by 264 

director 118 

FRAiiD  (q.v.)hj 349,  350,  336  ?i 

INCAPACITY  (q.  V.)  of,  to  perform  contract 118,  119 

interest  in  the  property,  claiming 118,  119 

married  woman,  professing  to  contract  for 262 

MISREPRESENTATION  (g.  V.)  by 318,  319,  320 

to 336 

mistake  by 360  et  seq. 

nominee • 117 

not  necessarily  party,  where 117 

personal  qualities  relied  on,  where 113 

pledge  of  goods  by,  after  revocation  of  authority 265 

principal  sued  with 117,  119 

without 118 

promoter 110 

proper  party,  where 118 

question  whether  contractor  is,  where 117 

RATIFICATION  (q.  V.)  of  Contract  of 262,  258  n. 

revocation  of  authority  of,  by  death  of  principal 265 

proved  by  parol 265 

signature,  rendered  liable  by 118,  258  n. 

SOLICITOR  {q.  V.)  264 

specific  performance,  where  sued  for 118 

stakeholder  of  deposit 119 

suing  as  principal 93,  94,     95 

at  Common  Law  without  principal 118 

in  Chancery 118 

telegraph  clerk 265 

ULTRA  VIRES  {q.  V.),  where  there  is  a  question  of 235 

unnamed  principal,  of 117 

unassignable,  where  contract  is 117 

woods  and  forests,  commissioners  of 117 

AGKEEMENT :  (See  Contract.) 


Ij^^dex.  713 

ALTERNATIVE :  page. 

claims : T8,  6G0,  662 

contract 418,  600 

impossibility  of  one 486  e<  seq. 

relief 48,  505,  662 

AMALGAMATION: 

companies,  its  effect  on  contracts  of  105,  484,  486 

contract  for 410 

AMBIGUITY  : 

C0NDITI01S7S  OF  SALE  {q.  V.),  in 561  et  seq . 

latent,  in  writing  used  for  rectification  of  deed 379 

vendor's  statements,  in '. 327 

ANCIENT  LAW: 

as  to  contracts 3 

ANNUITY: 

arrears  of -^ 451 

coNSiDEKATiON  {q.  V.),  where  part  of 210 

contract  for 97,  156,  449 

lives  to  be  named,  for 156,  157 

misdescription  of 562 

parol  contract  for 392 

reversion  sold  with 211 

sale  of,  after  death  of  annuitant 443 

APPEAL: 

COUNTY  COURTS  (q.  V.).  from 540 

stay  of  execution  pending .  31  «. 

APPOINTMENT : 

of  agent 258  Ji. 

APPRENTICE : 

contract  to  teach 92 

APPROPRIATION : 

goods,  of 160 

purchase-money,  of 639,  648,  649,  650 

APPROVAL: 

of  draft  not  a  contract 248 

ARBITRATION: 

Common  Law  Procedure  Act,  1854,  as  to 70O 

contracts  to  refer  to 699,  701,  195  >i. 

inequitable  refusal  to  refer  to 700 

ARBITRATOR  : 

award  will  be  enforced 699  n. 

award  in  excess  or  authority  of 699 

death  of,  before  award 700 

misconduct  of 186,  698 

price  to  be  fixed  by 165 

rent  referred  to 186 

valuer,  distinguished  from 164 


714  INDEX. 

ARCHDEACON:  page. 

jurisdictiou  of,  over  contracts 6 

AREA: 

COMPENSATION  (q.  V.)  eiven  for  deficiency  of 595 

not  given  for  deficiency  of 596 

ARTICLES  OF  ASSOCIATION, 

liow  far  a  contract 131,  132,  257 

ASSENT: 

must  be  to  that  wbicii  is  offered 134  n. 

ASSIGN : 

cannot  by  notice  prevent  completion  with  his  assignor 102 

enforcement  of  contract  by 93,  100 

extent  of  rights  of 103 

FKAUD  (q.  v.),  of  contract  tainted  by 350 

insolvency  of 465 

notice  of  previous  contract,  with 102 

recognized  as  tenant 99 

ASSIGNEE : 

BANKRUPTCY  {q.  «,),  in,  suing 99 

time  allowed  to  procure  concurrence  of 626 

insolvency,  in,  contract  for  lease  enforced  against 103  n. 

ASSIGNMENT : 

amalgamation  of  companies,  upon 105 

contract,  of 93  ei!  seq.,  93  n. ,  et  seq. 

exceptions  to  general  rule  as  to 96 

EXPECTANCY  (g.  ^.),  of    100 

family  arrangement,  where 99 

general  rule  as  to 93 

illegal 96,  99,  101  71. 

MISREPRESENTATION  («?.  V.),  of  contract  affected  by 336 

offer  of 102 

personal  contracts,  of 96,  99,  113 

pretended  rights  or  titles,  of 99 

previous  personal  relation  between  contractors,  where 97 

property,  of  the 102 

provision  against,  where 96 

waived 99 

public  policy,  contrary  to 96,  101 

right  at  the  time  undisputed,  of 100 

to  bring  action,  of 100 

satisfied  term,  of 631 

set  off,  where  a 97 

statutory  powers,  of 102 

trustee  in  bankruptcy,  by 100 

ASSIGNOR : 

completion  of  contract  with , 102 

insolvent 93,  465 

party,  when  a 93 


INDEX. 


715 


ASSISTANCE:                                                                                                         paae. 
writ  of 559 

ASSYRIA : 

contracts  in  ancient 3  n. 

ATTACHMENT : 

enforcement  of  order  by 556 

AUCTION : 

improvident  sale  by 190 

AUCTIONEER : 

agent  of  purchaser  at  auction ■ 262 

authority  of 264 

clerlv  of,  how  far  purchaser's  agent 264 

confirming,  contract  "on  behalf  of  the  vendor " 163 

co-plaintiff > H" 

declaration  by ^69 

defendant 119 

deposit,  his  rights  and  liabilities  in  respect  of 119,  120,  661 

entries  in  sale-book  by 264,  268 

interpleading 119 

party,  when  made  a ■. 119,  127,  651 

purchase  in  private  from 262 

signature  by 263  n. 

solicitor  for  vendor 120 

stakeholder 120,  661 

substitute,  may  not  appoint 264 

AUTHOR: 

contract  by,  to  complete  work 92 

AWARD : 

abandonment  of  a  term  of  the  submission,  after 696 

alternative  directions,  giving 486 

death  of  party  before 696 

defective 698 

exceeding  arbitrator's  authority 696,  698 

founded  on  improper  submission 697 

hardship  in 195 

ILLEGALITY  {q.  V.)  Oi 228 

not  binding  by  form  of  law 698 

not  signed  by  valuers  together 186,  187 

partial  execution  of 405 

price  to  be  determined  by 689 

specific  performance  of,  when  decreed  by  the  Court  of  Chancery 

695  11  695,  696 

uncertain 698 

■    unreasonableness  of 195,  228,  695,  697 

unsuccessful  proceedings  to  set  aside,  effect  of 47,  473,  698 

valuation,  on  sale  at  a 696 

BAILIFF: 

accountability  of 645 

to  purchaser,  vendor  in  possession  is  not 645 


716  INDEX. 

BANKRUPT:  page. 

purchaser 464 

vendor 464 

BANKRUPTCY : 

act  of,  a  bar  to  action  for  specific  performance 464 

assignees  in,  suing '. 99 

contract,  does  not  per  se  discharge 464 

personal  contracts,  its  effect  on 96 

trustee  in,  assignment  by 99 

covenants  by 463 

disclaimer  by 464 

enforcement  of  contract  by 463 

specific  performance  against 106,  464 

BANKRUPTCY  ACT,  1869  : 

disclaimer  under 464 

BIDDINGS 188 

opening 446 

(And  see  Puffer.) 

BILL  OF  LADING : 

stipulating  as  to  leakage  and  breakage  in 642 

BILL  OF  SALE: 

transfer  of  ship  {q.  v.)  hj 683 

BOND: 

alternative  conditions,  containing 487 

ante-nuptial 37 

contract  contained  in  condition  of 57 

evidenced  by 57 

to  give 406 

marriage  articles  by 60  n. 

relief  from  penalty  of _ 485 

to  refer  to  arbitration 699 

{And  see  Penalty.) 

BREACH : 

COVENANT  {q.  v.),  oi 36,  468,  470  et  seq. 

duty,  of 192 

good  faith,  of .- 473 

BREACH  OF  TRUST: 

assignees  in  bankruptcy,  by 192 

contract  necessitating,  not  enforced 190 

objections  for,  precluded  by  conditions  of  sale 191 

setting  aside  contract  for 192 

trustees  for  sale,  by 1 90 

BUILDING  CONTRACT  : 

anciently  enforced 34,  39 

damages  uuascertainable,  where 42 

defined  work  to  be  done,  where 41 

divisiljle 403 

house  to  be  built  and  leased,  concerning 39,  156,  157 

liability  of  court  to  enforce 39 

Lord  Cairns'  Act,  since 41 


INDEX.  717 

BUILDING  CO'^TRA.CT—Coniinued.  page. 

market-house,  for  erection  of 42 

plaintiff's  interest  in,  material 41 

possession  obtained,  where 42 

savouring  of  the  realty 34 

Scotland,  in 41 

uncertainty  of 39 

where  court  will  enforce 41,  39  n. 

{A7id  see  Railway,  Siding.) 

BURDEN  OF  PROOF 131,  141,  400 

{See  Onus.) 

BUSINESS : 

covenant  not  to  carry  on 58,  36  n. 

CALLS : 

indemnity  against 664 

made  before  contract 673 

CANAL : 

covenant  to  repair 43 

CANON  LAW  : 

obligation  of  actual.perf ormance  recognized  by 6,      7 

CAPACITY  : 

acquired  after  contract 480 

to  contract 124  e^  seq,  688 

perform  contract 479,  480 

{And  see  Incapacity,  Incapacity  to  Contract.) 

CERTAINTY : 

amount  of,  what  required 175,  176 

boundaries,  by  ascertainment  of 160 

essential  in  contracts 155 

FKAUD  {q.  V. ),  less  required  in  cases  of 180 

indefinite  words,  in  cases  of 176 

reasonable 175,  176 

user  and  course  of  dealing,  given  by 176 

{And  see  Uncertainty.) 

CERTIFICATE  : 

against  the  title,  but  defect  cured     629 

should  state  the  defects 628 

application  to  discharge  or  vary  628,  630 

defect  discovered  before  signing  of  627 

form  of,  upon  inquiry  as  to  title 627,  628 

in  favor  of  title 628 

objecting  to,  before  signature 627  n. 

purchase  under  the  court,  of 445 

reference-back  of 628,  629 

result  of  inquiry  as  to  title,  of 627 

sale,  of 653 

CESTUI  QUE  TRUST: 

contracts  injurious  to,  not|enforced 191 

real  estate  devised  in  trust,  of 88  n. 

{And  see  Parties.) 


718  INDEX. 

CHAMPERTY :  page. 

contract  unenforceable  on  ground  of 229 

doctrine  of ^^^ 

CHARIOT:     ' 

contract  to  supply ^^^  ^^^ 

CHARITABLE  CORPORATION: 

contract  by '^^^ 

CHARONDAS: 

principle  of •* 

CHARTER-PARTY  : 

effect  of  exception  in,  as  to  pirates 642 

negative  term  implied  in 414,  415 

specific  performance  of,  enforced 28  ». 

CHATTELS : 

connected  with  enjoyment  of  estate 34,  34 

convenient 33 

deliverj'  of 3,  5,  9 

part  of  contract 28  w. 

disclosure  of  latent  defect  in • 341 

execution  for  return  of 5 

of  judgment  for  delivery-up  of,  stay  of 31  n. 

essential 38 

generally  court  refuses  to  interfere  in  respect  of 28 

implication  of  existence  of 444 

improper  dealings  by  agent  with 34 

instalments,  delivery  of,  and  payment  for,  by 35 

not  in  possession  of  vendor,  sale  of 481 

peculiar  value,  of 33 

pretium  affectionis,  having 28 

price  agreed  on,  where 33 

specific 32 

trust  constituted,  where 34 

unique    28 

CHAUCER . 

contracts  mentioned  by 6 

CHOICE  OF  REMEDIES: 

must  seek  redress  first  at  law 47  n. 

CHOSE  IN  ACTION  : 

contract  to  assign 16,  79  n. 

CICERO : 

concealment,  on j 343 

CIVIL  LAW : 

alternatives,  as  to 489  n. 

COAL: 

contract  for  supply  of 518 

COLLATERAL  CONTRACT 277,  278 

default  by  plaintiff  in  respect  of 458 


INDEX.  719 

<JAGK. 

COLLIERY 40,  519,  530,  613 

(See  Mines.) 
COLONIES : 

land  in  the 50  n. 

COMMON  IGNORANCE 675 

COMMON  LAW: 

agent  suing  in  his  own  name  at 118 

defect  of  justice  arising  from 22 

its  approaches  to  specific  perfokmance  {q.  v.) 3 

Parliamentary  contract  not  enforced  at 53 

penalty  and  liquidated  damages,  difference  between,  at 57 

performance  not  enforced  by 2 

pretended  title,  transaction  as  to,  void  by 99 

purchaser's  liability  to  indemnify  vendor  of  shares  recognized  at 664 

remedy   15 

adequate 33  e«  seq. 

inadequate 22 

less  beneficial 22 

personal  responsibility  of  defendant,  dependent  oa 22 

want  of  exactitude  in 23 

reversioner  suing  at 74 

special  damage  to  be  shown  at 74 

stranger  to  contract  cannot  sue  at 82 

suing  in  equity  after  proceeding  at 47 

supplemented  by  equitable  jurisdiction 22 

COMMON  LAW  PROCEDURE  ACT  1854 : 

arbitration,  as  to 700,  701 

delivery  of  chattle,  as  to 5 

injunctions,  as  to 550,  551 

mandamus  under 4 

valuers  do  not  come  under 164 

COMPANY : 

action  by,  against  person  taking  shares 28 

amalgamation  of 105 

bond  fide  sale  of  land  to 238 

contract  to  form 38  ii.,  404 

intra  vires  and  beneficial  to 110 

delegation  of  powers  by  101 

directors  of,  where  liable  on  contracts 118 

disclosure  of  material  circumstances  by 341 

expiration.of  statutory  powers  of 194,  216 

FRAUD  {q.  v.)\)y 321 

fraudulent  misconduct  of 507 

liability  of,  on  contracts 118 

Lord  Cottenham's  doctrine  as  to,  criticised Ill,  113 

member  of,  contract  to  become 38 

MISREPRESENTATION  {q.  V.)'bj 323 

projectors'  place,  not  a  body  succeeding  to Ill 


720  INDEX. 

COMPANY— Ctf?i?m2<ef?.  page. 

promoters'  contracts,  taking  benefit  of 108 

recognised  by 108,  109 

ultra  xnres HO,  HI 

warranted  bj-  terms  of  incorporation  of 108,  110,  111 

purchase  of  superfluous  land  by 238 

winding-up  of,   before  completion  of    contract  to  purchase  shares 

450,  671,  675 
{And  see  Corporation,  Raihcay,  Ultra  vires.) 

COMPANIES  ACT,  1863 309 

application  to  rectify  register  under 543,  543 

transfers  after  winding-up,  as  to ' 676 

COMPANIES  ACT,  1867 310,  342 

COMPANIES  CLAUSES  CONSOLIDATION  ACT,  1845 309,  310 

COMPENSATION: 

abatement  from  purchase-money,  by 577,  586,  589 

rent,  by 590  ». 

acreage,  for  deficiency  in 578,  591,  594,  571  n.,  586  n.,  590  n. 

advowson,  on  purchase  of 423  n. 

apprehended  nuisance,  for 573 

bond  fide  mistake,  in  case  of 591 

calculating,  mode  of 589 

where  no  data  for 581,  590,  597,  598 

case  for,  should  be  pleaded 571 

charges  for  portions,  in  respect  of 593 

completion,  claimed  before 593,  593 

right  to,  after 593 

condition  for, 

considerable  deficiency  of  area,  in  case  of 595 

construction  of = 595 

enforced  nothwithstanding  execution  of  conveyance 594 

material  misdescription,  where  there  is 379 

purchaser's  rights,  its  effect  on -"93 

recission  notwithstanding 579 

right  of  way  not  within 580 

suggested  mode  of  framing 594 

usually  extends  vendor's  rights 579 

vendor  suing  must  bring  the  defect  within  .  .• 579 

copyhold  lot  nearly  equivalent  to  freehold,  in  respect  of 581 

Counsel's  opinion,  where  completion  depended  on 596 

customary  right  of  renewal,  for 504 

DAMAGES  Cg.  v.)  a  spccics  of 597 

distinguished  from  .   599 

given  as 603 

•DELAY  (q.  V.)  in  payment  of  purchase-money,  for 517 

needed  for  ejectment,  for 583 

DETERIORATION  {q.  V.)  for 592 

difference  between  position  of  vendor  and  purchaser  as  to 570 

dry-rot,  for  representation  as  to 578 


INDEX. 


721 


COMPENSATION— (7<?w<mwe(?.  page. 

house  without  wharf,  for 572 

impossibility  of  exact  performance,  in  cases  of 460 

incumbrances,  for 575 

INDEMNITY  {q.  V,)  a  specics  of 575 

innocent  misstatement  or  mistake,  for 594 

investigation  of  title,  for  defect  appearing  on 570 

knowledge  of  the  state  of  the  title,  where  purchaser  had 587,  588 

large  part  of  property  incapable  of  being  conveyed,  where 585 

latent  defect,  for 578 

liaJbility  of  jetty  to  be  removed,  for f •■ 573 

limitations  of  the  principle  of 588 

Lord  Erskine  on  the  principle  of 572 

Lord  Thurlow  on 573 

manorial  fines,  for 597 

material  part  wanting  (and  vendor  plaintiff),  where 572,  573 

means  of  discovering  error  before  completion,  notwithstanding.    . .  594  ?i. 

JvnsREPRESENTATiON  (q.  V.),  where  vendor  has  made 576,  582,  583 

MISTAKE  (q.  v.),  for 580 

moiety,  where  vendor  entitled  only  to  a 586 

occupier,  upon  purchase  by 578 

origin  of  the  right  to 570 

ornamental  timber,  on  cutting  of 581 

outstanding  lease  for  life,  for 590 

over-statement  of  profits,  in  respect  of 576 

partial  interest  only,  where  vendor  has 219,  570 

patent  defect,  in  cases  of 577,  578 

payment  of  fixed  sum,  by 60 

purchaser  insisting  on  the  contract,  in  cases  of 583,  597 

may  generally  enforce  contract  with 583  et  seq. 

Queen  Anne's  Bounty,  for  charge  in  favor  of 348,  423,  n.,  589 

quit  rents,  for 5  <  7 

reasonably  estimable 577,  590 

RESCISSION  (q.  V.),  where  vendor  has  power  of 596 

reservations  and  conditions  in  Crown  grant,  for 590 

right  of  digging  coals,  for 590 

fetching  water,  for 580 

sporting,  for 578 

right  to,  abrogated  by  another  term  of  the  contract 596 

lost  by  vendor's  conduct 596 

rights  materially  affecting  enjoyment,  in  cases  of 580,  581 

road,  for  non-construction  of 199 

severance,  for ^"^ 

slip  of  ground  between  residence  and  high  road,  for 573 

stone  subtracted  from  quarry,  for 592 

supplemental  bill,  obtained  by 592 

taxes  under  local  public  Act,  in  respect  of 577 

tenant  for  life,  in  cases  of  contracts  by 584,  588,  589 

tenant  in  remainder,  on  contract  by 584 

tenure,  for  difference  of 574,  579 

46 


722  INDEX. 

COMPENSATION— Ctf?ia/i«6(f.  page. 

third  persons,  where  partial  alienation  would  prejudice 588 

timber,  on  sale  of 581 

tithe,  for 574,577,  592,  59» 

underlease  sold  as  lease,  where •  580,  582 

unessential  defects,  in  cases  of • 576,  578 

unimportant  misstatement,  in  cases  of 597 

unjust  or  unfair 991 

Vendor  and  Purchaser  Act,  1874,  as  to  claims  for 539 

vendor  insisting  on  the  contract,  in  cases  of 571-583 

waiver  of  defect,  in  cases  of 578 

water,  for  loss  of 457 

wife's  interest,  for 482,  586,  587,  588 

within  what  limit  of  time  it  must  be  claimed 592 

CO«MPLETENESS: 

ascertained  at  commencement  of  action 156 

ascertainment  of  term,  effected  by ■ 157 

insufficient,  instances  of 168 

material  terms,  as  to 168 

SUBJECT-ilATTEK  {q.  V.),  aS  tO 157 

{And  see  Incompleteness.) 
COMPLETION : 

claim  for  compeksation  (g.  v.)  after 593,  594 

before • 592 

equitable  estate  absolutely  vested  upon 633 

expiration  of  company's  powers  before 194 

interest  and  rents  interchanged  from  time  for 636 

means  of  discovering  error  before 594 

no  time  fixed  for 636,  65a 

removal  of  interchange  of  properties  from  time  fixed  for 637 

TITLE  ((/.  1).},  of 625,  626 

COMPROMISE  : 

attachment  to  enforce 45 

counsel,  made  by 693 

FAIRNESS  {g.  V.)  of 183 

good  consideration,  a 692 

infant  and  adult,  between 693  n. 

jurisdiction  in  the  Court  of  Chancery  as  to  enforcing 692,  694 

High  Court 694 

must  relate  to  doubtful  claim 692  n. 

married  woman,  l)y 688 

proceedings  in  another  court,  relating  to 692 

specific  enforcement  of 17,  692,  694 

stay  of  proceedings  after 694 

uncertainty,  rendered  fair  by 183,  692 

CONCEALMENT  : 

agent,  by 331 

industrious 344 

KEScissiON  {q.  V.),  a  ground  for 838 

right  of  way,  of 331 


INDEX.  723 

CONCEALMENT— COTi!:«/iwe(Z.  page. 

sale  with  all  faults,  in  cases  of 344 

wrongful  taking  of  coal,  of 344 

{And  see  Fraud.) 

CONDITION : 

BOND  (q.  v.),  of 55,      57 

(And  see  Penal  Sum.) 

breach  of 462  n. 

construction  of,  as  to  rights  of  water  and  easements 563  n. 

contract  rendered  absolute  by  performance  of 447,  475 

implied,  for  delivery-up  of  deeds 170 

excusal  of  non-performance 478 

good-title 170 

ncn-pe"rf ormance  of,  a  defense 475,  475  n. 

precedent 458  n. 

TIME  (q.  v.^,  as  to,  a  mutual  stipulation 510  n. 

public-house  license,  as  to    476 

waiver  of 411,  477 

CONDITIONAL  CONTRACT  : 163,  217,  447,, 475 

implication,  by  476 

no  action  on 478 

personal  services,  for 478 

railway  company,  by 478,  476,  485 

warehouse,  to  take  lease  of 447 

CONDITIONS  OF  SALE": 

abstract,  for  delivery  of 648 

admeasurements,  as  to  correctness  of 595 

ambiguous ...  562 

assumption,  requiring  purchaser  to  make  566,  567,  612 

cestuis  que  trust,  injurious  to 191 

COMPENSATION  {q.  V.),  for 565,  570,  578,  et  seq, 

concealing  difficulties •    . .    .  565,  566 

conduct  inconsistent  with 473 

constitute  part  of  the  contract 560 

deficiency  on  re-sale,  for  recovery  of 58 

delivery  of  objections,  as  to 565 

discharge  of  purchaser  for  obscurity  of 560 

deposit,  for  forfeiture  of 58,  659,  n.,  661  n. 

repayment  of 661 

fee-farm  rent,  of 611 

FRAUD  {q.  v.)\n. 565 

good  faith  required  in 565 

immediate  possession,  for 473 

inability  of  vendor  to  give  a  good  title,  in  case  of 564 

interest,  as  to  640,  649,  et  seq. 

lessor's  title,  as  to 620 

letters,  referring  to 269 

life-annuity,  as  to 563 

misleading 566,  15,  612 

MiSREPKESENTATioN  {q.  V.),  in  cases  of 565 


724  INDDX. 

CONDITIONS  OF  SKLEr—Co7itinued.  page. 

outgoings,  as  to 564,  645 

possession  under  lease,  as  to  effect  of 563 

precluding  inquiiy  as  to  title 560  n. ,  563,  612 

objection  to  the  court's  jurisdiction  to  order  sale 568 

principles  on  which'.the  court  construes,  560,  578,  604,  594,  640,  650,  et  seq. 

read  in  connection  with  one  another 595 

reasonable  clearness  required  in 560 

reference  in  auctioneer's  entry  to 268 

rents,  as  to 640 

rents  and  profits,  as  to  receipt  of 564 

restraint  of  purchaser's  legal  right,  in 560 

restrictive  stipulation  in ." 611,  625 

right  to  rescind,  living 501,  504,  565,  566 

limited  by  condition  for  compensation 504,  595,  595 

where  vendor  shows  no  title 502,  603 

Sale  of  Land  by  Auction  Act,  1867,  as  to 348 

sales  by  the  court,  in 567,  568 

specified  deeds,  as  to  giving  up 595 

stating  facts 567,  568 

superfluous  land,  of 612 

tenures,  as  to  mingling  of 424  n. 

TIME  (q.  v.),  as  to 514,  518,  7i.,  519 

TITLE  (q.  V.)  in  accordance  with 614 

verification  of  abstract,  as  to 565 

wording  of  conveyance,  as  to 568 

CONDUCT  : 

equity  derived|f rom 85 

CONSENT : 

essential  to  a  contract  in  equity 363 

mortgagee's  failure  to  obtain 195 

nature  of  proper 187  n. 

refusal  of,  no  defense  to  purchaser 198 

third  party,  of 481 

wife,  of 482 

CONSIDERATION : 

absence  of 443 

additional  proof  of 392 

ascertainment  of  amount  of 166 

contingent  interest,  for  charge  on 679 

contract  without 45 

examples  of  suflicient 203  7i. 

failure,  of 442,  442  7i. 

by  destruction  of  subject-matter 444,  446 

by  plaintiff's  non-performance 460 

fair,  contract  to  give  a 167 

future  act 405 

inadequacy  of 202,  449,  204  n.,  et  seq. 

annuity  transaction,  in 206,  210 

auction,  on  sale  by 206 


INDEX. 


725 


CO'NSID'ERATIO'N— Continued.  ■  pase. 

burden  of  proof  of 211,  213 

combined  with  fraud,  or  circumstances  of  oppression  or  ignorance,  203 

evidence  of  fraud 204,  ~06 

former  doctrine  as  to 205 

HARDSHIP  {q.  ^^)  only 208 

liow  it  may  appear  in  the  contract  .  .• 202 

206 
mere """ 

KEVERSioiTAKY  INTEREST  (q.  V.),  in  sale  of 211,  et  seq. 

Roman  law,  in 209 

setting  aside  contracts,  as  a  ground  for 204 

showing  transaction  to  have  been  a  gift 203 

valuer,  where  price  referred  to 210 

when  to  be  judged  of •  •  •-•-^ 210 


legal 


45 


marriage  settlements,  in 45 

separation,  in  contracts  for 689,  690 

statement  of  when  necessary 252  n. 

unlawful 223  w. 

CONSTRUCTION : 

condition  as  to  rights  of  water  and  easements,  of 563  n. 

"  covenant,"  of ^^^  ""• 

CONTEMPORANEOUS  WRITINGS 395  «. 

CONTEMPT '^^^ 

CONTINGENT  INTEREST  : 

conveyance  of - " ' ' 

non-enforcement  of  contract  relating  to 67^ 

CONTINUOUS  ACTS : 

performance  of 35,    40 

CONTRACT : 

abandonment  of 495,  524 

absolute 447 

adoption  of 1^^ 

agency,  of 45 

AGENT  (q.  v.),  by  113,  120 

alternative 418,  486,  600,  et  seq. 

amalgamation,  for 410 

annuity,  for 9'^>  156 

approval  of  draft  not  a 248 

arbitration  not  enforced  for 195  n. 

articles  of  association  constituting 131 

assignment  of 93  et  seq 

benefit  of,  had  in  specie 42 

BREACH  OP  TRUST  {q.  V.)  Or  of  prior  contract,  involving 190 

BUILDING  {q.  V.) 34,  156,  39  n. 

business,  not  to  carry  on 57 

CERTAINTY  (q.  V.)  of 155  et  seq. 

COMPLETENESS  {q.  V.) 155  et  seq. 

change  of 163  n. 


726  INDEX. 

CONTRA.CT— Continued.  page. 

charitable  purposes,  for 47 

CHATTELS  (rj.  v.),  foT  Sale  and  delivery  of 5,  28  e^  seq. 

Chaucer's  mentiou  of 6 

chose  in  action,  to  assign 16 

collateral 277,  458. 

common  law,  how  regarded  at 15 

coxrPANY  {q.  V.),  of 118,  232,  309 

compounding  a  felonj- 230  n. 

complete,  must  be 155  7i. 

concluded 131,  248 

conditional '. 447 

consideration,  where  no 45,  203  n 

contemporaneous 404 

contingencies,  involving 184,  475  et  seq. 

continuous  acts,  involving 35,    40 

corrupt  consideration 225  n- 

cross 403 

death  of  party,  to 88  ?i. 

debt  to  purchase 19 

deed,  contemi)lating 406 

defect  in  subject  matter  of 421  n 

definitions  of 1,  133  n. 

discrepant  with  itself 177 

divisible  or  not 399,  419  7i.,  et  seq. 

donee  of  power,  by 73 

effect  of 633 

elements  of,  classified 169  n. 

enforcement,  of,  when  impossible 17  n. 

equity,  how  regarded  in 15,  571 

essentials  of 155 

events  prior  to 443,  445 

subsequent  to 446 

existence  of 131 

EXPECTANCY  (q.  «.),  relating  to 677  et  seq. 

expectation  of 131 

FAiKNESS  {q.  V.)  of 181  et  seq. 

foreign 49,  49  n. 

foreign  government,  by 48 

full  performance  impossible 399  w.,  410  n. 

future  acts,  depending  on 410 

stipulating  for 406 

future  day,  to  convey  on 481 

general  terms,  framed  in 168 

GOOD  WILL  (q.  V.),  respecting 36 

guide-book,  to  edit ■ 357 

HARDSHIP  (^q.  V.)  of 188,  193,  193  71. ,  et  seq. 

HIRING  AND  SERVICE  (q.  V.),  of 43 

HUSBAND  AND  WIFE  (^q.  V.),  between 128 

ILLEGALITY  (q.v.)of 223,  229,  448,  222  n.,  46  n. 


INDEX.  727 

CONTKACT— Cb«^2VmefZ.  p^ob. 

immovable  property,  relating  to 49 

implied  terms  of 169  e<  seq. 

impossible 45 

incapacity  of  defense 124  n. 

indemnify,  to 391 

instalments,  to  be  performed  by 35 

instructions  for  a  settlement ....    131 

intoxicated  person,  by 189  n. 

judge's  order, 131 

LEASE  {q.  v.),  to  accept 41,  125  n. 

lunatic,  of 130 

marine  insurance,  for 341 

marriage,  in  restraint  of 224  n. 

MAERiED  WOJIAK  {q.  1).),  oi 125,  129 

material  terms  of 168 

music-hall,  to  let 478 

MUTUALITY  {q.  V.),  of 213,  220,  221  71. 

notice  of  withdrawal  from 659  n. 

non-conclusion  of 131  et  seq. 

new,  must  not  be  inconsistent 182 

obligations  arising  from 2,  635 

of  the  parties  to 634 

option,  giving 65 

parliamentary 53 

PARTNERSHIP  {q.  V.),  for 38,  680,  681 

PART-PERFORilANCE  (q.  V.)  of 281,  301  71. 

passing  of  the  property  in  subject-matter  of 633 

payment  of  money  for ,       5 

satisfied  by .' 25 

not  part  performance 301  n. 

PENAL  SUM  {q.  V. ) ,  with 55 

personal 92,  96,  98,  99,  113 

personal  services,  for 43,  44,  404,  478,  36  n.,  45  n. 

(See  Hiring  and  Service.) 

philanthropy,  for  purposes  of 47 

piecemeal  execution,  providing  for 162  w.,  403,  407 

place  of  execution -. %  n. 

pleasure,  for  purposes  of 47 

pollicitatio  distinguished  from 133  n. 

positive 478 

posting,  perfected  by 295 

premium,  to  reduce 35 

privity  of » 50 

promoters,  by 107  et  seq. 

(And  see  Com/pany.) 

public  policy,  against 96,  101,  676,  7i.,  222  %.,  226  n. 

purchasing  goods 232  n. 

real  estate 50  n. 

RAILWAY  {q.  v.),  to  make 25,  179,  215 

(And  see  WorJcs.) 


728  INDEX. 

CONT'RACT—Co7iii7iued.  page. 

reasonableness  of WS,  181 

recital  evidencing 131 

recission  of 497  n. 

registered  land  or  charge,  relating  to 81 

renewal,  for 169 

renew  perpetually,  to 65 

repairing 39,  40,  43. 

{See  Building  Contract.) 

REPRESENTATION  (rj.  V.),  by 147  et  seq. 

RESCISSION  (q  V.)  of 492  et  seq. 

reversion,  for  sale  of 211,  213 

{See  Reversionary  Interest.) 

revocable 37,    88 

roads,  to  make 173 

savouring  of  the  realty 34 

scientific  pursuits,  for  purposes  of 47 

several  documents,  contained  in 266  n.,  251  n. 

SHARES  {q.  V.  ),  for 664  et  seq, 

SHIP  (q.  v.),  for  sale  of 683,  686 

SIGNATURE  {q.  V.)  of 253  et  seq. 

specific  chattel,  for  delivery  of 31 

spes  successionis,  concerning 16 

STOCK  (q.  v.),  for  purchase  or  transfer  of 26,     19 

STOCK  EXCHANGE  {q.  V.),  made  on  the 664  et  seq. 

subscription  of 253  n. 

tenancy,  for 24 

tenant  in  tail,  by 73 

third  person's  decision,  referring  to 169' 

timber  trees,  for  purchase  of 19 

time  of  payment  may  be  of  essence  of 512  n. 

time,  when  complete 512  n. 

to  contract 169,  658 

trust  created  under 404  n. 

uberrimm  fidei 341 

ULTRA  VIRES  {q.v.) 110,  232  n. 

unbusiness-like 192 

UNCERTAINTY  {q.  V.)  oi 160,  172,  173  w.,  et  seq 

undated 171 

underlease,  for 170 

undertaking,  in  nature  of 217 

UNFAIRNESS  {q.  V.)  of 181  et  seq. 

unlawful  consideration 223  n. 

unilateral 217.  527 

unreasonable 196  n. 

unregistered 103 

utmost  endeavours,  to  use 485 

voluntary 45 

way-leave,  to  grant 25 

will,  to  make 105 

working  mines  or  quarries,  for 40 


INDEX.  729' 

PAGB. 

CONTRAVENTION  OF  CONTRACT,  ACTS  IN AGT  et  seq. 

{See  Acts  in  Contravention  of  the  Contract.) 

CONVEY : 

effect  of  direction  to 70,  628  ?i. 

CONVEYANCE : 

legal  estate  passes  by 633 

by  parents  for  children 680  n. 

questions  of 680,  631 

vendor's  obligation  to  execute  and  procure  execution  of 634 

COPYHOLD : 

cannot  generally  be  forced  on  purchaser  of  freehold  (and  vice  versa), 

424,  424  n.,  579,  579  n. 
compensation  for 581,  582 

CORPORATION : 

common  seal,  absence  of,  when  not  a  defense  to 311 

must  generally  contract  under 309 

companies  act,  1867,  as  to  contracts  by 310 

companies  clauses  act,  1845,  as  to  contracts  by 309 

contracts  by 235  n. 

distinction  between  individuals  and 235  n. 

ecclesiastical,  covenant  for  renewal  by 485 

every-day  contracts  of 309 

fraudulent  representation  by  agents  of 336  n. 

formalities  requisite  in  contracts  by 309 

HAKDSHiP  (q.  «  )  on  individual  members  of 198 

irregularity  in  contract  by 239 

omission  of  formalities  in  contract  by 239 

PART-PERFORMANCE  [q  V.)  of  invalid  contracts  of 285 

power  of,  to  contract ^ 232 

prima  facie  bound  by  contract  under  seal 232 

validity  of  contracts  of 232 

RATIFICATION  {q.  V.)  by 235 

trading,  contracts  of 309 

ULTRA  VIRES  (q.  V.),  contracting '. 466  ei  seq. 

(And  see  Company.) 
correction  of  mistake  in  deed 372  n. ,  376  n. 

COSTS : 

application  to  rectify  register,  of 541 

contract  respecting 679,  689 

county  court,  where  action  within  jurisdiction  of 540 

demand  as  relating  to 630  n. 

inquiry  as  to  damages,  of 604  n. 

issue  to  ascertain  damages,  of 646 

laches,  in  case  of 531 

land  transfer  act,  1875,  under 541 

lien  on  estate  for 629,  6G0 

purchaser's  objections  overruled,  where 630 

reference  of  .title  prevented  by  purchaser,  where 630 

representative  of  deceased  vendor,  of 88  n.,  90  7i. 


730  INDEX.       , 

■COSTS — Continued.  page. 

rescission  of  default  after  judgment,  upon 556 

small  breaches  of  good  faith  may  affect 473 

title  assured  by  payment  of 439 

too  doubtful  to  force  on  purchaser,  where 628 

up  to  time  of  first  showing  a  good  title 630 

waiver  of  rights,  by 235  n 

COUNTERCLAIM 80,  538,  660 

COUNTY  COURT  ACTS,  1865,  and  1867 540 

COUNTY  COURT  RULES  : 

appeal  from 540 

concurrent  jurisdiction  of  high  court  in  cases  cognisable  by 541 

jurisdiction  of,  in  specific  performance 540,  541 

transfer  of  actions  to  and  from 540 

COVENANT : 

breach  of,  frequent 36 

involving  merely  nominal  damages 470 

breach  of,  landlord  defendant  objecting  on  ground  of 471 

trifling , 470 

under  contract  for  lease 33,  467,  470 

waived 470 

willful  470 

canal,  to  repair 43 

construction  of  the  word 563 

deeds,  to  produce ■  •  •  •  479 

farming  lease,  in 35,  58,  408 

further  assurance,  for 460,  478 

indemnify,  to 460,  704 

INJUNCTION  {q.  V.)  to  restrain  breach  of 407  et  seq. 

by  insolvent  465  n 

liquidated  damages,  protected  by  provision  for 124 

mines,  to  work 471 

mutual  as  to  building 124 

notice  of 105 

oppressive  to  lessee  of  mines 201 

possible  liability  under 575 

prima  facie  right  to  enforce 407 

real 6 

renew,  to 20,  217,  469,  471 

repair,  to 467,  470 

to  leave  buildings  in 201 

restrictive 470 

reversioner  enforcing 74 

right  of  pre-emption,  to  give 102  n. 

separation  deed,  in 470 

settle  lands,  to 407,  677 

three  classes  of 56  n. 

trustees,  by 464 

ULTRA  VIRES  {q.  V.) 190 

usual 168  7i. ,  423  TO. 


INDEX.  731 

■COVENANT— Co?j^2>Mierf.  page. 

variation  of 372 

writ  of 6 

CREDITORS  : 

deceased  vendor's  contract  enforced  by , 90 

cross  bill 63  ?i. 

CY  PRES  EXECUTION  : 

.COMPENSATION  {q.  V.),  in  enforcing  contract  with 588 

illegality  created  by  statute,  in  cases  of 448 

incapacity  of  defendant  to  perform  contract  literally,  in  cases  of 483 

subsequent  legislation,  where  contract  partly  invalidated  by 485 

utmost  endeavors,  of  contract  to  use 485 

DAMAGES  : 

act  of  part-performance  answerable  in 43 

addition  to  specific  performance,  in 599,  603,  603 

bringing  suit  to  hearing  for 603 

building  contract,  for  breach  of 156 

chattels,  a  sufficient  remedy  in  respect  of 38 

COMPENSATION  (q.  V.),  a  spccies  of 597 

distinguished  from 599 

condition,  for  non-performance  of 411 

contrasted  with  specific  performance 3,5 

delay  in  performance,  for 603 

deterioration,  given  by  means  of  inquiry  as  to 599 

elected  alternative,  for  non-performance  of 490 

equity  will  not  interfere,  when IS  n. 

evidence  as  to  amount  of 604 

French  law,  as  to '^05 

inequitable  action 607 

inexactness  of  measure  of 33 

inquiry  as  to 603,  604 

jurisdiction  of  the  Court  of  Chancery  in  respect  of 599,  600 

High  Court  in  respect  of 601 

liquidated • 57,  59,  58  7i. 

{See  Penal  Sum.) 

Lord  Cairns'  Act  (q.  v.),  under 411,  600,  G02 

loss  of  profits,  for 602 

mistake  of  defendant,  where  specific  performance  is  refused  for G04 

no  case  for  specific  performance,  where 601 

non-building,  for 603 

no  title,  where  vendor  shows •■ 503,  603 

part-payment  and  outlay  by  purchaser,  in  case  of 601 

positive  contract,  for  non-performance  of 479 

quantum  damniflcatus,  ascertained  by  issue  of 599  n. 

railway  cases,  in 33 

remedy  by,  unavailable  from  form  of  contract 19 

rule  as  to 606  ?j. 

specific  performance  impossible,  where 600,  601 

specific  performance  in  lieu  of 21  7i. 

station,  for  non-erection  of 603 


732  INDEX. 

BAMAGES—Contmned.  page. 

stay  of  proceedings,  upon 557 

subsequent  to  decree • 601 

substitution  for  specific  performance,  iu 600,  601,  603 

trial,  assessed  at  the 604 

utility  of  the  jurisdiction  in 602 

vendor  of  land,  an  incomplete  remedy  to 25 

where  performance  cannot  be  had  608  n. 

DEATH : 

admission  in  pleadings,  after 275 

author,  of ■ ^5 

contract  enforced  notwithstanding 88 

rendered  impossible  by 19 

personal  contracts,  in  cases  of 92 

principal,  of 265,  88  n. 

proposed  lessee,  of 92 

purchaser,  of 91 

revivor  after 91 

tenant  in  tail  in  common,  of 483 

vendor,  of 88 

DEBT: 

contract  to  purchase 19 

sale  of  proved,  contract  for 23 

specific  performance 14,  n. 

DEBTORS  ACT,  1869  : 

defendant  about  to  quit  England,  as  to 553 

DECEIT  : 

action  for 316,  319.  320,  323,  337,  344 

aggressive 345 

{And  See  Fraud,  Misrepresentation.) 
DECEPTION  : 

as  to  the  person  contracted  with 98,  313,  n.  et  seq. 

DECLARATION  : 

indemnity,  of  liability  to  perform  covenant  of 704,  705 

purchaser's  lien,  of 662 

vendor's  lien,  of 558 

DEED: 

accidental  destruction  of 170 

antedating 473 

contract  contemplating  execution  of 406 

to  execute 681 

decreeing  execution  of 681 

deUvery  up  of 170,  465,  480,  565,  466  n. 

description  in 490  n. 

duplicate  when  had 17  w. 

fraudulent  misdating  of 473  n. 

loss  of 465,  46  n. 

mistake  in,  may  be  corrected 372  n. 

not  in  proposed  covenantor's  power 480 


INDEX. 


733 


DEED— Continued.  page. 

prepare,  who  must 499  n.  535  n. 

production  of ^'^^ 

secondary  evidence  of  execution  of 466  n. 

verification  of 632 

{And  see  Title  Deeds.) 

DEFAULT  OF  PLAINTIFF  ; 

ACTS   IN   COXTRAVEXTION   OF   THE  CONTRACT  {q.  «.),  by 467  et  SCq. 

collateral  contract  in  respect  of 45S 

excused ^"^ 

independent  covenant,  in  respect  of ^60 

{And  see  Perfm'mance.) 

DEFAULT  OF  BOTH  PARTIES 536  n. 

DEFECT  IN  SUBECT-MATTER: 

easements,  consisting  in  existence  of 422 

essential 421,  425 

latent,  obligation  to  disclose .• 341,  421,  423 

liability,  consisting  in  existence  of 423 

minute  examination  of,  not  demanded 422 

patent 332,  421,  422,  577 

question  of  title  not  a 421 

sale  with  all  faults,  in  cases  of 424 

subject  matter 4-1  n. 

uncertain  description,  in  cases  of 424 

unessential     4»o 

unknown  at  time  of  contract  to  both  parties 423 

DEFENSE: 

of  personal  incapacity 124  n.,  187  n. 

DEFINITION: 

mistake 360  n. 

signed 253  n. 

specific  performance  in .   .  • 133  n. 

subscribed ; '. 254  n. 

DELx-^Y: 

abandonment,  amounting  to 526 

acceptance  must  be  without 139 

of  title,  in  regard  to 527 

accidental 64«/ 

act  of  God,  arising  from 643 

action,  in  instituting 525,  526,  529  n.,  530,  531,  536  n. 

prosecuting 5-6 

constituting  laches 526  et  seq. 

damages  for 60- 

death  of  vendor,  arising  from 643 

defendant,  attributable  to 532 

"from  whatever  cause" 640  e«  seq.,  649 

interlocutory  injunction,  as  an  objection  to  grant  of 546 

interest,  not  exempting  purchaser  from  payment  of 642 

lessor  of  wine-vaults,  of 532 


734  INDEX. 

DELAY — Continued.  page. 

liability  or  loss,  involving 521 

mine,  in  contract  iof  lease  of 529,  530 

negotiation,  pending 531 

notice  limiting  time  (q.  v.),  after 522 

of  refusal  to  perform,  after 53(X 

performance,  in 526,  537 

possession,  where  plaintiff  is  in 529,  531 

possibility  of,  contemplated 642 

protest  against 533 

purchase-money,  in  payment  of 517 

purchaser  in  possession,  by 657 

purchaser's  objections,  occasioned  by 639 

unilateral  contracts,  in  cases  of 527,  528 

untenable  objection,  arising  from 532,  643 

vendor,  attributable  to 637 

"waiver  of 533  et  seq. 

conduct,  by • 533,  534 

notice  of  abandonment,  after 534 

what,  sufficient  to  bar  right  to  relief 529,  530 

DELIVERY : 

of  deed 466  n. 

DEMAIs'D: 

relating  to  costs 630  n. 

of  performance 529  n. 

DEMURRER: 

compensation,  to  vendor's  bill  for  performance  with 570 

Statute  of  Fkauds  {q.  v.),  on  ground  of 240,  243,  244 

work  and  labor  done,  to  bill  for 289 

DEPENDANT  COVENANTS 459  n. 

DEPOSIT: 

allowed  to  remain  in  vendor's  hands « 533 

AUCTIONEER  {q.  V.),  holding 119,  661 

condition  as  to  time  for  payment  of. 516 

for  repayment  of 662 

discretion  of  Court  of  Chancery  as  to  ordering  return  of 662 

forfeiture  of 58  n.,  661 

infant  cannot  recover 215  n. 

injunction  against  action  for 549,  574 

interest  on  629,  639,  644 

lien  on  estate  for 629,  659  et  seq. 

memorandum  of  terms  of 18 

purchaser  disentitled  to  sue  for 611 

retainer  of  vendor's  costs  out  of 662 

sale  by  auction,  on 659  n. 

private  contract,  on 659 

stakeholder  of 119 

sued  for  before  day  fixed  for  transfer  of  possession 661 

vendor  ordered  to  repay 629,  662,  665 


INDEX.  735 

DESCRIPTION :  PA»E. 

deflniteness  of,  what  required 159,  490  n. 

flourishing 583 

"  freehold  residence  " 563 

general 157,  184,  424 

indefinite 177 

misleading 561 

MISREPRESENTATION  (^  t'.)  in 582 

name,  instead  of 161 

parties,  of 160,  162 

reference  to  holder  of  deeds,  by 159 

subject-matter,  of 157,  159 

sufficient,  instances  of 163 

UNCERTAINTY  {q  V.)  of 161,    424 

variation  from,  a  ground  of  defense  421 

vendor  prima  facie  responsible  for 571 

DESTRUCTION : 

of  SUBJECT-MATTER  {q.  V.)  of  coutract 443,  444,  447  et  seg.,  675 

DETERIORATION: 

accidental 647 

accountabitity  of  vendor  for 592,  646,  647 

acts  of  ownership  occasioning 656 

after  purchaser  takes  or  ought  to  have  taken  possession 647 

COMPENSATION  {q.  V.)  for 592,  64& 

discovery  in  case  of 646 

due  to  purchaser  himself 64& 

inquiry  as  to •  •  •  •  599 

negligence  of  vendor  or  his  tenants,  arising  from 593 

set-off  of  amount  of,  against  interest 646 

vendors'  lessees,  by 646 

working  mine,  by 647 

yearly  tenancy,  where  property  sold  is  let  on 646' 

DETINUE : 

action  of 13 

(And  see  Chattels.) 
DEVISE: 

agreement  to 105  '^- 

DEVISEE : 

purchaser's,  when  a  party 91 

vendor's,  when  a  party 88 

DIRECTOKS : 

agents  of  company H^ 

breach  of  duty  by 1^2 

irregularity  in  contracts  by 23& 

liability  of,  on  contracts 118 

MISREPRESENTATION  {q.  V.)  hj ' 318,    324 

principals 118 

refusal  of,  to  register  transfers 873 

resolution  of,  where  a  contract 118 


'736  INDEX. 

DmBCTOHS— Continued.  page. 

statutory  power  of,  to  contract 309 

suing  without  joining  shareliolders 75 

ULTRA  VIRES  (q.  V.)  in  cascs  of  contracts 285 

DISCLOSURE: 

obligation  to 340  cJ  seq. 

patent  defect,  of • - 343 

state  of  house,  of 343 

{And  see  Fraud. ) 

DISCOVERY : 

deterioration,  in  case  of 646 

DISCRETION  OF  COURT: 

Companies  Act,  1863,  s.  35,  under 542 

injunction,  as  to 624 

Lord  Cairns'  Act,  under 599,  602 

relief  on  admissions  of  fact,  as  to 624 

return  of  deposit,  as  to 662 

specific  performance,  as  to    10 

transfers  of  shares  after  winding  up,  as  to 676 

when  it  ceases 11  n. 

DISENTAIL: 

contract  to  (cf.) 48  n. 

DISMISSAL  OF  ACTION: 

certificate  against  the  title,  upon '. 629 

title,  for  defect  or  want  of 427,  609 

DISTRESS : 

evidences  of 187 

DIVISIBLE  CONTRACT 399  ei!  seq.,  419  n. 

builder,  by 403 

contemporaneous  contracts  intended  to  be  separate,  where  there  are . .  404 

distinct  lots,  for 401 

piece-meal  execution,  providing  for 403,  407 

ship  and  freight,  for 400 

two  estates  included  in  same  contract,  where 403 

DIVISION  LINE: 

by  parol  agreement '• 508 

DOLUS  DANS  LOCUM  CONTRACTUI 322,  342 

DOWER: 

rule  for  computing 128  n. 

right  of  a  cloud  on  title 432  ?i. 

DRUNKENNESS 188 

(See  Intoxication.) 

EASEMENT : 

construction  of  condition  as  to 564 

ECCLESIASTICAL  CORPORATION: 

contract  for  purchase  by 521 

ECCLESIASTICAL  COURTS: 

former  jurisdiction  in  specific  performance  of 6,      7 


INDEX.  737 

« 

PAGE. 

ECCLESIASTICAL  LAW 7 

EGYPT: 

contracts  in  ancient 3  n. 

ELECTION: 

alternative,  of  487  e^  seq. 

assignees  in  bankruptcy,  by 464 

award,  respecting 47 

bond,  where  contract  comprised  in 60 

common  law,  to  proceed  at 47 

completion  and  recission,  between 486 

contract  becomes  single  by 490 

decree,  given  by 123 

destroyed  by  obligee 490 

discovery  of  fresh  incidents  of  fraud  after 353 

express  or  inferred,  may  be 353 

FRAUD  (g.  V. ),  as  to  contract  tainted  by 351  et  seq. ,  354 

inadequacy  of  coksideration  {q.  v.),  in  cases  of •. 210 

indemnification  of  vendor  and  rescission  between 200 

interest  and  rents,  between 649 

Lands  Clauses  Act,  by  proceedings  under 47 

marriage  articles  by  bond,  not  imported  from  form  of 60  w. 

married  woman,  of 128 

MISTAKE  (q.  v.),  in  cases  of  371 

mode  of  ascertaining  price,  as  to 165 

negotiation  for  payment  of  money,  by 47 

once  determined 353 

open  reference  of  title  and  dismissal  of  bill,  between 625 

parol  variation,  in  cases  of 369 

payment  into  court  and  giving  up  possession,  between 653,  656 

performance  and  payment,  between 55,  57,     60 

{And  see  Penal  Sum.) 

plaintiff's  offer,  arising  from 392 

present  practice,  under 47 

proposal  giving l43 

ratification  and  annulment,  between 378 

rescind,  to 353,  507 

settlement,  in  contracts  for 64 

SUBJECT-MATTER^?.  1).)  of  contract  ascertained  by 160 

time  for  exercise  of 353 

EQUALITY  : 

essential  in  contracts 155,  181 

EQUITY : 

relief  by 555  ti. 

creates  no  right  of  action \Z  n. 

EQUITABLE  ESTATE : 

sale  of 61^ 

revesting  of 633 

when  it  passes 4^''''  ^33,  633  n„ 

47 


738  INDEX.  , 

EQUITY  OF  REDEMPTION  :                                                                      page. 
person  interested  in,  a  party 67 

ERROR : 

antecedens  and  consequens,  distinction  between 336  iu 

COMPENSATION  (g.  v.)ioT 544  et  seq.,  579,  583,  595 

knowledge  of 319 

means  of  discovering,  before  completion 561 

person  contracted  with,  as  to 98 

reduction  of  contract  into  writing,  in 369,  371  n.  . 

{And  see  Mistake.) 

ESTATE  AGENT: 

ACCEPTANCE  (q.  V.)  hj    252 

ESTOPPEL: 

by  treating  contract  as  subsisting 616 

EVIDENCE: 

abandonment,  of 524 

additional  terms,  of 308 

AGENCY  {q.  v.),  of 259,  259  n.,  263  n. 

agreement  to  rescind,  of 466,  494,  495 

arbitrator,  of 698 

buildings  not  being  on  copyhold  part,  of 698 

collateral  matters,  of 493 

conflicting,  as  to  breach  of  covenant 472 

connecting  subject-matter  of  contract  with  claim 159 

damages,  as  to  amount  of 60S 

defendant's  denial,  overcoming 379 

distress,  of 187 

earnest  as 285 

extrinsic 167 

fraud,  of 205  n. 

identity,  of 157,  619,  633 

knowledge  of  misrepresentation,  of 333 

litigation,  to  maintain 100  ii. 

matters  of,  distinguished  from  matters  of  title 632 

MISTAKE  (q.  v.),  of 360,  373,  378 

new  contract,  of 497,  499 

(And  see  Novation.) 

non-waiver  of  objection,  of 616 

PAROL  {q.v.) 157,  159,  277,  386,  308,  360,  371,  377,  49S 

admission  of,  for  plaintiff 387  ei  seq. 

latent  ambiguity,  in  cases  of 379 

only  acted  on  when  no  writing  exists 379 

PART  PERFORMANCE  (q.  V.),  in  cases  of 281,  313 

{And  see  Parol  Variation.) 

admission  in  pleadings,  where  there  is 303 

conflict  of  testimony,  where  there  is 304 

one  witness,  of 304 

variation  between  contracts  alleged  and  proved,  where  there  is. . .  304 

recovery  of  property,  for 100  n. 

REFERENCE  OP  TITLE  {q.  V.),  under 627 


INDEX.  739 

EVIDENCE— Conimy^c?.  page. 

secondary,  of  execution  of  deeds. 465  n. 

SUBJECT-MATTER  (g.  V.)  of  contract,  as  to 157 

terms  of  sale,  of 284 

trusteeship  for  real  purchaser,  of 278 

usage  of  trade,  of 378 

variation  of  written  contract,  of 494 

vendor,  as  to  the  real 163 

willingness  to  remove  objection,  of 503 

■wills,  of  persons  and  things  mentioned  in 157 

EXCHANGE: 

contract  for 16  n. 

EXECUTED  CONTRACT: 

EXECUTORY  CONTRACT  {q.  V.),  contrasted  with 9,  408 

injunction  as  a  right  flowing  from 407 

notice,  effect  of,  on  the  relief  in  respect  of 105 

PARTNERSHIP  (q.  V.),  of 408 

principle  of  entire  performance  does  not  apply  to 407 

rescission  of,  for  innocent  misstatements 319 

specific  performance  may  be  refused Qn. 

EXECUTORS : 

contract  enforced  by 66,  91 

discharged  from  hability,  where 93 

one  of  two,  contract  for  sale  by 191 

personal  qualities  required,  where 92 

proposed  lessee,  of 93 

suing  before  probate 91 

EXECUTORY  CONTRACT: 

converted  into  actual  sale  by  election 160 

EXECUTED  CONTRACT  ((/.  V.),  Contrasted  with 9,  408 

implication  in,  as  to  usual  stipulations 171 

negative  term,  containing 412  et  seq. 

PARTNERSHIP  {q.  V.),  fOT 409 

performance  of  whole  of 404,  407,  545 

EXPECTANCY: 

annuity  charged  on 679 

contract  relating  to 677  et  seq. 

lunatic,  from 679 

personal  nature  of  contract  relating  to 680 

transfer  of,  not  forbidden  by  the  82  Hen.  VIII.  c.  7 100 

wife,  of 679 

{And  see  Contingent  Interest,  Will.) 

EXTINCTION : 

of  SUBJECT-MATTER  ((/.  t).) 443,444,460,  675 

FAILURE : 

of  CONSIDERATION  {q.  V.),  et  seq 443,  442;n. 

FAIRNESS : 

compromises,  in. ••-.•• 183 


740  INDDX. 

YAIR^BSS— Continued.  page. 

contingencies,  in  contracts  involving 184,  193 

essential 155,  181 

famil}^  arrangements,  in 183 

"  surrounding  circumstances,  of 186 

when  to  be  judged  of 181 

{Atul  see  Unfairness.) 

FAMILY  AERANGEMENT 99,  183,  214,  294 

FAULTS: 

sale  with  all 334,  335,  434 

FEE-FARM  RENT  : 

conditions  of  sale  of 611 

FELONY: 

plaintiff,  of 465 

FINES . 

manorial 635  n. 

misstatement  as  to 597 

FINES  AND  RECOVERIES  ABOLITION  ACT: 

dispositions  of  lands  by  tenants  in  tail  under 48 

FIRE: 

benefit  of  insurance  against / 449 

deeds  destroyed  by 465 

music-hall  destroyed  by 478 

subject-matter  destroyed  by 447 

FISHERY : 

contract  for  lease  of 375 

FOREIGN  CONTRACT: 

enforced  here,  may  be 49,  49  n. 

immovable  property,  relating  to 49,     50 

in  specie,  to  deliver  a  thing  here 50 

legaUty  of 223 

lien  on  foreign  real  estate 50 

marriage  contract  made  in  France 49 

Mr.  Justice  Story  on  the  English  doctrine 50 

Statute  of  Frauds  {q.  v.),  affected  by 240 

FOREIGN  GOVERNMENT: 

contract  by ._ 48 

FORFEITURE: 

acts  which  would  have  worked  or  would  work 467 

apprehension  of,  not  a  defense 199 

calls,  for  non-payment  of 519 

deposit,  of 661 

equity  will  not  enforce 467  n. 

liability  to,  a  hardship  (?.«.) 198 

relief  against 470,  471,  659  n.,  661  n. 

resulting  from  other  acts  of  defendant  himself 199 

WATVER  {q.  V.)  of ■ 533 

waste,  worked  by 468 


INDEX. 


741 


FORM  OF  PROCEEDINGS:  paoe. 

alternative  relief 48 

amendment ^° 

{And see  Inquiry,  Issue,  Pkculing,  Reference  of  Title,  Rules  of  Court,  ^rii.) 

FORMALITIES . 

CORPORATION  (q.  V.)  required  in  contracts  by 309  e«  seq. 

omission  of,  in  contract  by  corporation 239 

Statute  of  Fratjds  {q.  v.)  not  required  by 245 

FRAUD: 

absolute  conveyance,  in  cases  of 276 

affects  the  entire  contract .• .   350 

agent,  by 3*^ 

antecedent  wrong  done,  where 340 

apparent  defects  no  subject  of 332 

assign  for  value  of  contract  tainted  by 350 

belief,  by  warranty  of 320 

certainty  less  required  in  cases  of 179 

certificates,  in  withholding 409 

collateral  parol  contract  or  promise,  in  cases  of 277 

comes  before  the  court  in  several  relations 337 

company,  by 3~o 

concealment  by 338,  344  et  seq. 

CONDITIONS  OF  SAXE  (q  V.)  in  relation  to 565 

consideration,  inadequacy  of 205  n. 

constituents  of 287 

corporations  are  incapable  of  personal 350 

deceit,  a  ground  for  an  action  for 337 

disclose,  where  there  is  an  obligation  to 330,  339  n. 

dispositions  by  defrauding  party  to  persons  not  privy  to 352 

election  to  be  bound  by  contract  tainted  with,  et  seq 352 

fiduciary  relationship,  in  cases  of 339 

how  shown 338  n. 

imperfect  statement,  by 342 

inducement  to  the  contract,  must  have  been 325 

innocent  party  cannot  derive  benefit  from  another's 349 

in  toio,  vitiates  contract ^^*^ 

knowledge  of  the  untruth  requisite  to  constitute 219 

legal ■ 320 

marriage  articles  or  contracts,  in  relation  to 279,  280,  300 

married  women,  of 1^° 

memorandum  only  ancillary  to  verbal  contract,  where 278 

MISREPRESENTATION  {q.  V.),  a  larger  word  than 337 

non-disclosure  in  cases  of 338 

non-performance  of  parol  contract  to  sign  a  writing  is  not 279 

obtaining  contract,  in 337 

opening  biddings  for 365 

parol  evidence  in  cases  of •   •  •  •  2(9 

part  of  contract,  as  to 350 

partnership,  in  contract  for 682 


742  INDEX. 

FRAUD — Continued.  pagb. 

PART-PERFORMANCE  {q.  V.),  prevented  by  the  operation  of  the  principle 

of 286 

perf onnance  of  contract,  in 337 

personal  bar  to  performance,  a 351 

plea  of 320 

promise  to  rectify  objection,  by  non-fulfillment  of 391 

prospectus,  in 342 

proviso  for  defeasance  or  redemption  omitted,  where 278 

public,  on  the 357 

PUKFER  {q.  v.),  by  employment  of 347  et  seq. 

receipt  of  dividends  before  discovery  of 364 

refusal  to  sign  a  written  contract  is  not 279 

rescind,  partly  defrauded  may 368  n. 

RESCISSION  (q.  V.)  for 181,  337 

restitutio  in  integrum  in  cases  of 354  et  seq. 

right  to  complain  of,  not  marketable 100,  228 

sale  with  all  faults,  in  cases  of 344 

settlement,  upon 589 

shares,  inducing  contract  to  take 354 

SILENCE  (q.  V.)  generally  is  not 317,  338,  343  et  seq. 

may  he 341 

specific  performance,  a  defence  to  an  action  for 337 

Statute  of  Frauds,  an  exception  to 375,  et  seq. 

stranger,  by 350 

suppression  of  material  fact,  in  cases  of 338 

uberrimm  fidei,  where  contract  is 341 

voidable  only,  renders  contract 351 

waiver  of 349,  350 

wills,  in  relation  to 281 

{See  Misrepresentation.) 

FRAUDS,  STATUTE  OF 2^  et  seq. 

{See  Statute  of  Frauds.) 
FREEHOLD : 

cannot  be  forced  on  purchaser  of  copyhold,  and  vice  versa,  424,  424  n.,  579  n. 

FRENCH  LAW: 

inadequacy  of  consideration ;  as  to 209 

no  specific  performance  in 707 

price,  as  to  non-ascertainment  of 63  /i. 

rescission,  as  to 209,  356 

FUNDS. 

{See  Stock,  26.) 

FURTHER  CONSIDERATION: 

specific  performance  ordered  on 628,  629 

FUTURE  ACTS: 

judgment  relating  to 704 

GIFTS  OF  REAL  ESTATE 204  n. 

GOING  CONCERN: 

contract  for  sale  of 518,  561 


INDEX.  743 

PAGE. 

GOOD  FAITH  IN  FORMING  CONTRACT 321  n. 

GOODS: 

appropriation  of 160 

GOODWILL: 

attorney's  business,  of 36 

contract  for  sale  of t 36,  521 

nature  of 36 

term  respecting,  introduced  by  acceptance 133 

GOVERNMENT  STOCK. 

{See  Stock,  26.) 

GREGORY,  DECRETALS  OF. 

{De  Pactis,  6.) 
GUIDE-BOOK: 

contract  to  edit 357 

HARDSHIP: 

acts  of  plaintiff  after  contract,  arising  from 196  et  seq. 

alteration  of  state  of  property,  arising  from 196 

annuity,  in  contract  to  sell 449 

AWARD  {q.  v.),  in 195 

bars  the  court's  interference 193 

BREACH  OF  TRUST  {q.  V.),  wliere  contract  necessitates 190 

brought  upon  defendant  by  himself 198 

companies,  in  contracts  between 202 

covenant  to  leave  buildings  in  repair,  arising  out  of 201 

discretion  of  court  not  affected  by 10 

disregard  of  time,  resulting  from 520 

failure  of  purchaser's  speculation  not  a 198 

forfeiture,  wliere  apprehension  of 199 

where  liability  to 199 

impossibility  of  enjoying  thing  purchased,  where 201 

inadequacy  of  consideration  a  form  of 202,  204  et  seq. 

indemnity,  where  vendor  has  not  stipulated  for 200 

latent  and  patent,  distinguished 197 

members  of  corporation,  resulting  to 198 

mortgage,  on 200 

oppressive  covenant,  of 201 

option,  arising  from  grant  of 201 

partnership,  in  contract  for • 682 

plaintiff's  conduct  a  trap  to  purchaser,  where 197 

service,  of  contract  for 201 

SILENCE  (q.  V.)  creating 188 

submission,  in 195 

subsequent  events,  arising  from 193  et  seq. 

trustees  for  sale,  on 200 

when  to  be  judged  of 193 

when  a  defense •  •  193  n. ,  198  n. 

HEIE: 

costs  of 88  «.,  90  n. 


744  INDEX. 

B-EIR—Contimied.                                                                               .           fagb- 
disposition  of  succession  by 677 

EXPECTANCY  (q.  V.)  of 677 

infant 90,  460 

non-performance  by .- 460 

purcbaser's,  wbere  a  party    91 

specific  performance  decreed  against 18 

trustee,  declared 90 

imauthorized  sale,  decreed  to  make  good 481 

vendor's  wben  a  party 80,     90 

HEIRLOOM 20 

HIKING  AND  SERVICE: 

auctioneer,  of 45 

broker,  of 417 

confidential  office,  in  cases  of 44 

contracts  for,  formerly  enforced 43 

HARDSHIP  {g.  iJ.)  of 201 

now  not  enforced. ,43,  45,  416 

manager  for  life,  of 43 

sbipping  broker,  of 45 

HONORARY  ENGAGEMENT 131,  148,  149,  268,  289 

partly  legal 418 

HUSBAND  AND  WIFE: 

assignment  by,  of  wife's  expectancy 679 

bond  given  before  marriage,  where 19 

consent  of,  to  trustees'  contract 104 

contracts  between. .    ..'.... 128,  482  n. ,  688 

by 482,  588 

with 215  TO. 

{And  see  Married  Woman,  Wife.) 

IDENTITY: 

declaration  of 619 

evidence  of 157,  619,     632 

parties,  of 161 

(And  see  Description.) 

SUBJECT-MATTER  {q.  V.),  of 157  et  seq. 

IGNORANCE: 


common 


675 


(A7id  see  Knowledge,  Mistake.) 
ILLEGALITY: 

a  bar  to  specific  performance 222,  223  n. ,  224,  n. 

alternative,  of 486 

AWARD  (q.  v.),  of  act  directed  to  be  done  by 228 

breach,  of  trust,  where  contract  necessitates 190 

clearness  of,  what  required  to  be  shown 228 

compensation  of 497  ?i. 

foreign  contracts,  in  cases  of 223 

immoral  consideration 230  n. 

impossibility  of  performance  resulting  from 448 


INDEX.  745 

ILLEGALITY— Continued.  page. 

inquiry  as  to 228 

Jessel,  M.  E.,  on 229 

modelling  contract  to  obviate  484 

nature  of  the  defense  of ■ 224 

partnership,  in  contract  for 082 

part-performance,  objected  after 155 

public  policy,  in  regard  to 223 

stock,  in  contract  for  transfer  of 229 

subsequent  statute,  created  by 222,  448 

trade  unions,  in  rules  of ♦  -  230 

trust  constituted,  where 229 

ILLITERATE  PERSON: 

contract,  by 187 

IMPLIED  TERMS: 

contract,  of 455,  169 

purchaser's  lien,  as  to 600 

rebutted l"^! 

silence  as  to 1^^ 

title,  as  to : 610 

waiver  of 1  *" 

IMPROVEMENT: 

made  under  promise  of  gift 508,  638  n. 

IMPOSSIBILITY: 

amalgamation,  of  executing  contract  for 410 

COMPENSATION  {q.  V. ),  of  ascertaining  amount  of 590,  597 

consent,  of  procuring 481 

of  fulfilling  contract 45  n. 

default  of  defendant,  due  to 410,  507 

delivering-up  deeds,  of • 465,  480 

elected  alternative,  of 490 

extinction  of  subject-matter,  owing  to 444,  478 

fraudulent  misconduct,  induced  by 507 

illegal  contract,  of  performing 448,  479 

lease  of  performing  contract  to  grant 603 

legal 479 

one  alternative,  of 4ob 

by  act  of  God 487  e<  seq. 

by  act  of  other  party - 489 

by  act  of  stranger - 490 

original ; '*'"" 

plaintiff's  part,  of  performing 460 

putting  parties  in  position  stipulated  for,  of 35 

/  481 

removed 

RECissioN  (g.  V  )  for 507 

winding-up,  arising  from  •  •  •  "  *  '^ 

INADEQUACY: 

COMMON  LAW  {q.  V. )  remedy,  oi -^ 

CONSIDERATION  {q.  V.),  of ~^"-'   213,  449 


-746 


INDEX. 


IN  ADEqU  ACT— Contimied.  page. 

evidence  of  fraud 205  7i. 

what  is 206  n. 

when  a  defense v  206  n. 

INCAPACITY: 

defendant  the  author  of  his  own 480,  401  n.,  419  n. 

of  court  to  execute  contract 35,  399,  682 

(jbid  see  Partial  Execution.) 

defendant  to  perform  his  part 478,  479,  ?i. 

vendor  to  convey,  knowledge  of 587 

^INCAPACITY  TO  CONTKACT: 

agent  of 130 

confidential  relations,  of  persons  standing  in 130 

distinguished  from  incapacity  to  execute  contract 124 

ground  of  defense 124,  187 

guardians  of 130 

husband  and  wife,  of 688 

LUNATIC  ((?.«.),  of 139 

MARRIED  WOMAN  (q.  1).),  of 125,    129 

when  judged  of 124 

INCOME-TAX: 

deducted  from  interest  paid  by  purchaser 644 

occupation-rent,  on 648 

payment  into  court,  in  cases  of 657 

INCOMPLETENESS : 

contract,  of  the 155,  171 

defendant's  default,  arising  from 156,  460 

evidence  of  the  contract,  in  the 156 

future  agreement,  where  matter  reserved  for 169 

implied  terms,  as  to 169 

instances  of 168 

material  item  wanting,  where 171 

PRICE  iq.  v.),  ast  0 162 

remediable 156 

treaty,  in  cases  of 249 

(_And  see  Completeness.) 

^INDEMNITY: 

calls,  against 664 

charge  on  estate,  against 593 

COMPENSATION  {q.  V.),  a  specics  of 575 

contract  for,  enforced 481,  704 

when  broken  704 

declaration  of  liability  to  perform  covenant  for 704 

ELECTION  (q.  V.)  between,  and  rescission 200 

equitable  owner  of  shares,  from 671 

FRAUD  (q.  v.),  against  loss  resulting  from 355 

future  demands,  against 704 

inquiry  as  to,  in  respect  of  charge 577 

new  contract  (for  shares),  enforced  by  action  for 670 


INDEX.  747 

INDEMNITY— Cfe?i<i7iw«Z.  page. 

parol  contract  to  give 391 

part  of  purcliase-money  set  aside  as 592 

purchaser  not  compelled  to  take 575,  581 

trust,  on  ground  of 671 

vendor  not  compelled  to  give 591,  592 

vrinding  up  after  contract  to  purchase  shares,  in  case  of 675 

INDIAN  LAW: 

of  contract,  ancient 3 

INEQUALITY 155,  181 

(See  Equality.) 
INFANT: 

compromise  by 692  n. 

DEPOSIT  (g.  v.),  cannot  generally  recover 215  n. 

non-perforjnance  by 460 

passing  on  name  of 669 

KATIFICATION  (q.  ®. )  by 215  71. 

INITIALS: 

signature  by 254,  256 

INJUNCTION: 

Act  of  Parliament,  to  enforce  contract  sanctioned  by 408 

actor,  against 413,  413 

acts  inconsistent  with  contract,  against 417,  548,  549 

advertisements,  against  issue  of 417 

ancillary 544,  546 

balance  of  convenience  in  relation  to 548 

bell,  against  ringing 546 

benefit  of,  conditional  on  plaintiff's  performance  of  his  part 546 

breaches  frequent,  where 36 

building,  against 545 

business,  against  carrying  on 57,  59  ?i. 

charter-party,  against  acts  inconsistent  with 414,  415 

clerk,  against  presenting,  instituting,  or  collating 549 

collier}',  against  selling 416 

connected  with  specific  performance  {q.  v.),  how 544 

conveying  away  legal  estate,  against 547 

damages  for  delay,  against  action  for 549 

deposit,  against  action  for 549,  574 

ejectment,  against 465,  469,  547 

executed  contract,  as  a  right  flowing  from 408 

express  or  implied  term,  restraining  breach  of 544 

extent  of  the  court's  jurisdiction  in 551 

farming  covenant,  against  breach  of 58,  407 

granted,  when 547  n, 

injustice  worked  by 544  ?i. 

in  statu  quo,  to  keep  property 546 

instrument  of  performance 544 

interlocutory 547,  548,  551 

Judicature  Acts  as  to 550,  551 


748 


INDEX. 


INJUNCTION— Co?i<mwfi(f.  page. 

lease,  to  enforce  covenant  in 407,  409 

letting  estate  pending  the  hearing,  against 548 

liable  to  be  dissolved,  where 546 

maps,  to  restrain  sale  of 413 

negative  term,  where  contract  contains 413,  545,  54fi 

non-performance,  enforcing  rights  resulting  from 544,  550 

Parliament,  against  applying  to 703,  703 

part  of  contract  incapable  of  performance,  where 545,  546 

{And  see  Partial  Execution.) 

partnership,  in  cases  of 408 

possession,  against  continuing  in 550,  558,  559 

prima  facie  case,  upon  . 547 

probate,  against  applying  for 549 

repairs  enforced  by 43 

restitution  of  conjugal  rights,  against  suit  for  . 549 

restrain  execution 551  n. 

sale  and  surrender  of  estates,  against 547,  548 

second  purchase  before  completion  of  first,  against 549 

separation  deed,  against  breach  of  covenant  in 48 

service,  to  enforce  covenant  for  exclusive 413 

ship,  against  removing 50 

singer,  against .  413 

specific  performance,  where  court  is  unable  to  grant 413,  416 

third  persons,  against 549 

timber,  against  cutting 547 

trade,  against  carrying  on 58 

trains,  against  running 559 

unenforceable  terms  all  on  plaintiff's  side,  where 418 

valuer,  against  obstructing 548 

voyage,  against  interference  with 414 

INQUIRY: 

average  balance  at  bankers,  as  to 651 

damages,  as  to '  603,  604 

deterioration,  as  to 599 

indemnity,  as  to 577 

rules  of  court,  under 634 

terms  of  contract,  as  to 306 

title,  as  to 609,  673 

{See  Reference  of  Title.) 

variations  in  partnership  contract,  as  to 498 

willful  default,  as  to 644 

INSANITY 139,  166,  679 

{See  Lunacy. ) 
INSOLVENCY : 

assign 465 

convenantor 465  n. 

intended  lessee,  of  464 

original  contractor,  of 465 

plaintiff,  of 465 

subsequent  afiiuence,  in  cases  of 465 


INDEX.  749 

INSTALLMENTS:  page. 

contract  to  be  performed  by 35 

interest  on G59 

payment  into  court  of 655 

price  to  be  paid  by 410,  449 

purclaaser's  lien  for 659 

refusal  to  make  due  payment  of 505 

separate  breaches  in  respect  of 504 

INSTRUCTIONS : 

for  settlement. 131 

INSTRUMENT : 

contract  to  execute  revocable 38 

INSURANCE 449 

{See  Fire.) 
INTENTION 148,  149 

{See  Bepresentatio7i.) 
INTEREST: 

amount  on  which  purchaser  pays 644 

appropriated  purchase-money,  on 639,  651 

arrears  of 658 

award,  from  date  of 639 

contract  exempting  purchaser  from  payment  of 651 

silent  as  to 636 

to  sell  vendor's 159 

condition  for  payment  of,  whatever  cause  delay  may  arise. .  .640,  643,  649 

deduction  of  income-tax  on  the  amount  of 644 

deposit,  on 629,  637,  644 

dispossession  of  purchaser,  in  case  of 653 

election  between,  and  rents 649 

examption  from,  not  enforced 651 

implied  agreement  to  pay 649 

instalments  of  purchase-money,  on 660 

interest  on 660 

personal  occupation,  where  vendor  is  in 647 

possession  returned  by  purchaser,  where 650 

purchaser  in  possession  generally  pays 648  et  seq. 

though  delay  owing  to  vendor  and  no  actual  profit  made 649 

rate  of,  allowed  to  vendor 644 

stipulation  for  increasing 650 

rents  and,  mutually  exclusive .    636,  649 

deducted  from 652 

reserved  to  vendor  by  conditions  of  sale,  where 640 

set  off  against  amount  of  deterioration 646 

Statute  of  Limitations,  when  due  within 658 

statutory  power,  where  possession  taken  under 653 

time  from  which  purchaser  has  to  pay,  where  action  rendered  neces- 
sary by  purchaser's  objections 539 

conditions  fix  time  for  delivery  of  abstract 643 

contract  fixes  a  date  for  completion 637 

fixes  no  date  for  completion 636 


750  INDEX. 

mTEB.BST—Coniinued.  pagb_ 
leaves  amount  of  purcliase-money  to  be  subsequently  ascer- 
tained       639 

estate  sold  is  reversionary 652 

interest  much  exceeds  rents  and  delay  is  owing  to  vendor 637 

notice    of    appropriation    of    purchase-money    has  been    given, 

639,  643,  649,  650 

price  is  ascertained  by  verdict  of  jury 653 

time  for  payment  into  court  is  appointed 653 

title  is  made  out  in  Chambers 637 

INTOXICATION: 

contract  not  void  but  voidable  in  cases  of 188  n.,  189  n. 

defense,  a 188,  364 

INVENTORY: 

vendor  obstructing  the  making  of  548 

ISSUE: 

devisnvit  vel  non 693 

quav-tum  damnificatus 484,  599  n.,  604,  646 

JOBBER: 

contract  of  sale  to 668 

JUDGE'S  ORDER 131 

JUDGMENT  CREDITOR: 

when  a  party ■   66  n. 

JUDICATURE  ACTS,  1873  and  1875: 

damages,  in  relation  to 601 

injunction,  as  to 550 

multiplicity  of  legal  proceedings,  as  to 394,  693,  694 

specific  performance  assigned  in  certain  cases  to  Chancery  Division 

by 538 

stay  of  proceedings,  as  to 550 

time,  as  to 511 

transfer  of  actions,  as  to 538,  539 

JURISDICTION: 

boundaries  of  North  American  colonies,  respecting 48 

Companies  Act.  1863,  s.  35,  under 543 

concurrent,  of  High  Court  and  County  Courts 540 

County  Courts  [q.  v.),  oi 539,  540 

defendant  not  subject  to,  where 48 

given  by  contract  itself 48 

INJUNCTION  (q.  v.),  va. 544  et  seq. 

Lands  Clauses  Act,  to  enforce  proceedings  under  53 

matrimonial  causes,  in 48 

penalty,  efEect  of,  on  the 55 

person,  against  the 48 

Sovereign  in  Council,  of  the 48 

statute,  where  taken  away  by 48 

subject-matter  not  originally  within 48 

{And  see  Specific  Performance,.) 


IITDEX.  751 

JURY:  PASE. 

price  ascertained  by  verdict  of 52,  53,  549 

JUST  ALLOWANCE: 

income-tax  on  occupation-rent,  of 648 

JUST,  CONTRACT  MUST  BE 181  ?i. 

JUSTINL^N: 

quoted 164 

KNOWLEDGE: 

defect  in  vendor's  title,  of -  = 586,  588 

LACHES: 

bar  to  relief,  a •  527 

continuing  in  possession  under  arrangement  "will  not  effect  question 

of 533 

delay  constituting 524:  et  seq. 

deposit  allowed  to  remain  in  vendor's  hands,  where 533 

disentitling  vendor  to  payment  into  court 653 

expiration  of  company's  powers  by 194,  216 

insisted  on  as  a  defense 622 

mere  claim  or  protest,  in  cases  of 533 

negotiation,  pending 531 

railway  act,  where  land  taken  under 533 

refusal  to  execute  lease,  after '•  •  531 

resale  by  vendor  if  gross ■ 53  ti. 

{And  see  Belay,  Time.) 

LAND  TRANSFER  ACT,  1875 81,  87,  439,  541 

{And  see  Parties.) 
LANDS  CLAUSES  CONSOLIDATION  ACT,  1845: 

charitable  corporation  selling  under 480 

compensation-money,  ascertainment  of,  under 53 

election  by  proceedings  under 47 

jurisdiction  to  compel  company  to  proceed  under 52 

mandamus  to  compel  proceedings  under 52 

no  equitable  relief  in  cases  under 52 

notice  to  treat  under, 

effect  of ^2 

followed  by  contract 53 

Parliamentary  contract  under 53 

possession  taken  under "52 

proceedings  under,  enforced 53 

purchase-money,  how  ascertained  under 52 

quasi-contracts  under ^^ 

refusal  of  company  to  proceed  under 52 

of  land-owner  to  convey  under 52 

warrant  to  sheriff  to  summon  jury  under 157 

LAPSE  OF  TIME 510  «^  ««?• 

{See  Time.-) 
LEASE : 

antedating 468,  472- 


752  IXDEX. 

• 

JjEASlEr-Contirmed.  ^^<^^- 

assignability  of  contract  for ^ ' 

bishop's ^'^ 

breach  of  covenant  before  execution  of 38,  468 

conditional  contract  to  accept ^'^'^'  ^^8 

contract  to  accept 157,  412,  575 

to  procure  surrender  of ^ '  ^ 

copyholder  contracting  to  grant ^S'* 

COVENANT  (g.  V.)  to  renew 20,  217,  469,  471 

disobedience  to  order  for  execution  of 556 

expiration  of,  before  the  hearing 450,  451 

farming,  covenants  in ■ 35,     58 

house  to  be  built,  of 41 


lives,  for 


168 


notice  of  covenants  in 335 

person  out  of  possession,  contract  by,  to  grant 100 

personal  accommodation,  for "9 

power,  under -^l" 

re-entry,  proviso  for,  in 469 

solvency  of  intended  lessee  in  contract  for 95,  465 

suppressio  veri  in  obtaining  renewal  of  188 

useless  to  intended  lessee 450  n. 

usual  covenants,  described  as  subject  to 423 

LEASEHOLD: 

advance  on  security  of 18 

LEGAL  ESTATE : 

passes  upon  and  by  conveyance  533 

LEGATEE : 

when  a  party 80,     91 

LESSEE: 

assign  of  intended 99 

death  of  proposed 92 

insolvent 96 

lien  of 660 

party,  when  a ''^ 

solvency  of 96,  464 

LESSOR : 

TITLE  (?.«.)  of 170,  613,  614,  620 

{And  see  Waiver.) 

LETTERS: 

conditions  of  sale,  ref emng  to •  •  269 

constituting  contract  and  evidence  of  it 270 

correspondence  by,  must  be  considered  as  a  whole 270 

declining  to  accept  goods 271 

enter  into  contract 271 

evidence  of  contract  completed  or  supplied  by 265 

extending  time  for  completion 535  n. 

general  assurance  as  to  intention,  containing 149 

implication  of  contract  from 278 


IISTDEX. 


753 


LETTERS— Continued.  page. 

lessor's  name,  mentioning 269 

parol  evidence  in  relation  to 266 

promising  to  perform  contract 268 

reference  in,  express 268 

to  written  terms 268,  269 

repudiating  contract 270,  271 

BiGNATUEE  (q.  V.),  where  paper  referred  to  for 267 

supply  a  term,  used  to 269 

third  persons,  addressed  to 270 

LETTERS  PATENT : 

contract  contemplating  the  obtaining  of 618 

LEX  FORI: 

remedies  governed  by 49 

LEX  PRiETORIA: 

quoted • ^^^ 

LIEN: 

costs  of  action,  for 630,  660 

counterclaim  for  declaration  of 660 

lessor's  interest  on 660 

on  land,  where  surrender  had  no  title 680 

purchaser's  declaration  of 662 

extent  of 660 

for  purchase-money  paid  and  interest 600,  629,  635,  659 

mode  of  enforcing 660,  662 

where  purchase-money  paid  over  to  trustees 587 

sub-purchaser,  of 660 

vendor's  (q.  V.) 657 

LIGHT-HOUSE : 

contract  to  build ^2 

LIQUIDATED  DAMAGES 68  n. 

LIS  PENDENS: 

third  person  affected  by 648 

LORD  BACON: 

quoted ^^^ 

LORD  CAIRNS'  ACT: 

building  of  house  and  grant  of  Jease,  where  contract  for  ... .  41,  156,  411 

condition,  in  cases  of^non-performance  of 411 

DAMAGES  (q.  v.),  Under,  condition  precedent  to 599,  602 

subsequent  to  decree  not  assessed  under 600 

jurisdiction  under,  discretionary 599,  602 

power  of  awarding  damages  conferred  by 599 

unavailable,  where 599 

LOSS: 

•  DETERIORATION  {q.  V.),  from 646,  647 

happening  after  signature^f  contract 446,  449 

profits,  of :  •  •  ^^^ 

purchaser's  obligation  to.bear 634 

48 


754  INDEX. 

LOSS — Continued.  tase. 

right  to  rescind,  of 503 

stakeholder,  of  money  in  hands  of 658 

LOTS: 

sale  in  distinct 401 

one ^^^ 

purchasers  of  separate : 399 

{And  see  Parties.  69,  78.) 

LUNACY : 

contract  respecting  costs  of  proceedings  in 679 

how  judged  of 1^30 

issue  directed  as  to • .  • 166 

setting  aside  contract  for 129  n. 

subsequent,  of  party  to  contract 129  u. 

supervening,  of  vendor 166 

LUNACY  KEGULATION  ACT,  1853 130 

LUNATIC: 

contract  relating  to  division  of  property  of 679 

generally  incapable  of  contracting 129 

lucid  intervals  of,  contracts  during 129,  129  n. 

evidence  required  to  prove 129  n. 

satisfied  term  outstanding  in 630 

MAINTENANCE : 

doctrine  of 10*^ 

transaction  savouring  of 100 

MANDAMUS : 

Lands  Clauses  Act 51 

object  of 4 

prerogative  writ  of 4 

statutory  writ  of 4 

MANOR : 

fines  in 597,  636  n. 

MAP  456 

{See  Plan.) 
MARINE  INSURANCE : 

contracts  for 341 

MARRIAGE : 

acceptance  of  written  proposal,  evidence  of 151 

agreement  in  consideration  of,  must  be  in  writing 298 

contracts  for,  enforced  in  ecclesiastical  courts 6,  20  n,  37  n. 

contract  in  restraint  of,  unlawful 224  n. 

PART  PERFORMANCE  {q.  T.),  is  not 151,  297,  299  n. 

promise,  not  induced  by 150 

{See  Representation.) 

proposals  on  treaty  for 151 

settlement 85  n. 

written  memorandum  of  contract  after 271 


INDEX,  765 

MARRIAGE  ARTICLES  OR  CONTRACTS:  pasb. 

FRAUD  {q.  V.)  in  relation  to 279,  280,  300 

impossibility  of  performing  part  of 461 

partial  performance  of " 407,  463 

uncertainty  of 177 

MARRIED  WOMAN: 

bound  by  order  of  the  court  to  convey 631 

capacity  of,  to  contract 688,  124 

compromise  by 683 

election  by ...  128 

fraud  of • 128 

general  engagements  of 126 

husband,  contracting  with 688,  128 

lease,  contracting  to  take 127 

power,  contracting  under 127 

real  estate  of 128 

separate  estate  of : 

actions  as  to 1 27  n. 

bound 127 

having 127 

not  having 125 

parties  to  action  in  respect  of 127 

restraint  on  anticipation,  with 127 

trustee  for  sale 129,  215 

(And  see  Husband  and  Wife,  Wife.) 

MARRIED  WOMEN'S  PROPERTY  ACT,  1870 127  n, 

MARRY : 

specific  performance  of  contract  to 6  n. 

MASSINGER : 

his  maid  of  honor  cited 6  ». 

MAXIMS  : 

Actio  personalis  moritur  cum  persona 92 

Actio  sequitur  forum  rei 49 

JEquitas  agit  in  personam 49 

Ex  dolo  mala  Twn  oritur  actio 224 

Id  cerium  est  quod  certum  reddi potest 157,  159,  161 

Ignorantia  juris  Tiaud  excusat 379,  383 

Nemo  potest  precise  cogi  ad  factum 3 

Non  videntur  qui  errant  consentire 361 

Omnis  raiiMbitio  retrotrahitur  et  mamlaio  cequiparatur 259 

MEDICINE : 

secret • 35 

MEMORANDUM : 

of  offer  distinguished  from  memorandum  of  agreement  ^cf.) il32,  143 

{And  see  Statute  of  Frauds.) 

MERCHANT  SHIPPING  ACTS 683.  686 

MESNE  PROFITS 648  7i, 


766  INDEX. 

MINES :  PA««. 

delay  under  contract  for  lease  of 528 

non-communication  of  existence  of 344 

representations  with  regard  to 325,  329 

TIME  {q.  V.)  essential  in  contracts  relating  to 518 

uncertain  contract  to  take l"''?,  186 

vendor  working,  during  delay  of  completion 646 

working  contract  for ........' 40,  471 

MISDESCRIPTION  : 

annuity,  of 562 

both  parties,  attributable  to • 395 

defendant  alone,  attributable  to 395 

equitable  interest,  of 562  n. 

fraudulent   395 

indemnity  in  respect  of 575 


innocent . 


895 


plaintiff  alone,  attributable  to 395 

RESCISSION  {q.  V.)  for 579 

ring-fence,  of  farm  as  lying  within  577 

trustees  for  sale,  by 191 

underlease  sold  as  lease,  where •  •  •  580,  582 

waiver  of  objection  on  the  score  of 616 

{And  see  Misrepresentation,  Mistake.) 

MISREPRESENTATION : 

advowson,  on  sale  of 326 

afifects  the  entire  contracts 350,  ^351 

agency,  what  proof  required  as  to,  in  cases  of 318 

agent  by 318,  321  n  ,  333  n. 

to •• 336 

allegation  of,  how  met 330 

alleged  fact,  must  be  statement  of '• 325 

assignment  of  contract  affected  by 335 

belief  of  truth,  must  exist  325  n. 

collateral  matter,  as.  to 322 

commendation  by  vendor,  in  cases  of : 327 

COMPENSATION  (q.  V.)  \Q  cases  of 576,  582,  583 

CONDITIONS  OF  SALE  {q.  V.),  in  relation  to 565 

contract,  as  to 313  n. 

deceit,  as  ground  for  action  for 317,  320,  323 

description  in 583 

directors,  by ^ 318,  323 

dolus  clans  locum  contractui 323 

effect  must  be  produced. 326  to. 

elements  of 315 

evidence  of  knowledge  of 333 

examination  by  party " 3S2  n. 

flourishing  description  not • 583 

FBAUD  {q.  v.),  how  related  to 316 

fraudulent  experiments,  by  performance  of 313 

house,  as  to  character  of 335 


INDEX.  757 

MISREPRESENTATION— Cfenfo'nti/Jd.  •  PAeir.. 

inadvertant,  a  man  is  generally  bound  in  equity  by 821 

innocent 320,  350,  355,  380 

intention,  of 322 

joint-stock  company,  by 323 

knowledge  of  matter  constituting  alleged 319,  330 

latent  or  patent  fact,  of ." 31^ 

law,  of 331,  380 

lease,  with  respect  to •  335 

lime,  as  to  quality  of -• 327,  329 

material  to  the  contract,  must  be 336 

matter  of  fact,  must  be  of 331  n. 

means  of  knowledge,  where 327 

mines,  with  regard  to 325,  329 

non-reliance  upon,  how  shown 327 

not  sole  inducement  to  the  contract,  where 325 

partnership,  in  cases  of 334 

party,  must  be  by  a 318 

patent  defect,  in  cases  of 332 

person  contracted  with,  as  to 335 

personal  bar  to  relief,  a 357 

prejudice  of  defendant,  must  have  operated  to * 336 

principal  innocent,  where 320 

prospectus,  in  323 

purchaser,  by 344,  345 

recollection,  where  want  of 321 

recommendation  to  consult  adviser,  where 334 

relation  to  the  contract,  must  have 322,  325 

reliance  of  defendant  upon  the 324 

report,  by  issue  of  false 318,  323 

RESCISSION  (q.  v.),  a  ground  for 316,  334 

when  not  a  grovmd  for 355 

resulting  in  contract  between  director  and  one  of  the  public 323 

sale  with  all  faults,  in  cases  of . .' «  335,  424 

SHARES  {q.  v.),  in  relation  to  contracts  for 318 

SILENCE  iq.  V.)  generally  is  not 317 

small  part  only  of  contract,  as  to 850 

specific  performance,  a  ground  for  refusing 313,  316 

state  of  mind  of  person  making 319 

statement  false  but  believed  to  be  true,  where 319,  330 

made  and  untrue,  where 317 

stock  exchange,  to  secretary  of 323 

stranger  making • 318 

tenancy,  as  to 583 

theatre,  as  to  profits  of '- 335 

time  of  treaty,  must  generally  have  been  made  at 323 

TITLE  (q.  v.),  as  to 331,  345 

trustee,  by 321 

unimportant 597 

vague  commendations  to  be  distinguished  from 345 

water-meadow,  as  to  land  being 326 


758  INDEX. 

MISREPRESENTATION— Cbntim/ed.  pao". 

willful  or  not ^^^ 

woods,  as  to  yield  of ^^^ 

{And  see  Mistake.) 

MISSTATEMENT  : 

COMPENSATION  {q.  V.),  foT 579,  594 

(And  see  Misrepresentation,  Fraud.) 

MISTAKE : 

absolute  bar  to  specific  performance,  may  be 361 

agent,  of ^^'^ 


American  jurist  on 


393 


assurance,  in  contract  for 375 

auctioneer,  of 365 

award,  iu - • 390  n. 

careless ■" ^^* 

common,  of  botli  parties 374,  395,  443,  675 

COMPENSATION  {q.  V.)  for 361,  595 

corporation's  agent,  of 366 

crassa  negligentia,  increased  by - 364 

damages  where  specific  performance  refused  on  ground  of 603 

deed,  may  be  corrected  in 372  n. 

defendant,  of,  alone 363,  368,-  395,  603 

contributed  to  by  plaintiff 363 

where  not  a  defense 33 

definition  of 360  n. 

dismissal  of  action  for 371 

bill  for ■. 372 

documents  of  title,  as  to  effect  of 383 

effect  of  contract,  as  to 385 

election  in  cases  of 33t»  et  seq. 

evidence  of  ...  - 373 

fact,  of 379,  380 

failure  of  consideration,  may  avoid  contract  for 361 

fishery,  in  contract  for  lease  of 375 

forms  of 7,8,  396 

innocent ^^^ 

law,  of 375 

leasehold  interest,  as  to  duration  of 385 

manor,  on  sale  of 365 

means  of  knowledge,  where  person  had 379  n. 

MiSDESCKiPTiON  {q.  V.) ,  by 395 

misleading  particular  and  condition,  occasioned  by 363 

no  ground  for,  where 868 

not  about  the  very  subject  of  the  contract 385 

one  party,  of 360,  363,  378 

opening  biddings,  not  a  ground  for • 365  ii. 

operation  of  law,  as  to  .  .• • 380  n. 

operation  of  contract,  as  to 384 

option  to  determine  lease,  as  to 368 

parol  evidence  admitted  in  cases  of  362,  378 

FAROL  VARIATION  {q.  V.),  in  cascs  of 368,  386 


INDEX.  759 

MISTAKE— Continued.  pagh. 

plaintiff  alone,  of 387 

plan,  occasioned  by ' 364 

principle  of  the  defense  of 361 

private  right,  as  to 383 

KECTIFICATION  {q.  V.)  of 376 

when  not  a  ground  for  compelling 378 

reduction  of  contract  into  writing,  in 369,  871  n,  376,  887 

EESCissiON  (q.  V.)  for 369 

reserve  bidding,  of  person  employed  to  make 363 

Roman  law  as  to 385 

sample,  in  sale  by 369 

shares,  in  contract  relating  to 676 

solicitor,  of 865,  377 

species  of,  distinguished 360 

speculation  upon  facts,  in  cases  of 384 

Statute  of  Fratjds  {q  v.),  an  exception  to    388,  361 

subsequent  parol  contract  not  within  doctrine  of 386 

tenant  for  life,  of .- 866 

unreasonable 367 

vendor,  of 365 

vendor's  agent  of 364,  365 

want  of  consent,  may  avoid  contract  on  ground  of 361 

(AndseeMisrepreseJitation,  Parol  Variation.) 

MONEY; 

agreement  to  lend  or  pay 17 

contract  satisfied  by  payment  of 23,  25 

equivalent  for  breach  of  contract,  when  an 22 

measure  for  every  loss 22 

MOKTGAGE: 

contract  to  execute •  •  17 

MOETGAGEE: 

contract,  of 95 

party,  when  a 67,  80,  96 

MORTGAGOR: 

when  a  party 68 

MULTIFARIOUSNESS : 

demmTer  for '. 78 

no  objection  made  for '8 

MULTIPLICITY: 

of  suits,  avoiding • 76 

{And  see  Judicature  Acts,  1873  and  1875.) 

MUNICIPAL  CORPORATIONS: 

held  strictly  to  charter • 236  n. 

MUSIC  HALL: 

contract  to  let 478 

MUTUALITY: 

allowance,  in  contract  to  pay 214  n. 

company  suing  on  contract  intra  vires  and  beneficial,  in  cases  of 110 


760  INDEX. 

MUTUALITY— Continued.  pasb. 

compromise,  in 692  n. 

conditional  contracts,  in  ! 217 

confidential  services  stipulated  for,  where 215 

deed-poll,  where  contract  contained  in 219 

defined 214 

employment,  in  contract  for 44 

{And  see  Hiring  and  Service.) 

exceptions  to  the  doctrine  of -. 217 

famil}"  arrangement,  in 214  ?i. 

husband  and  wife,  in  contract  with 215  n. 

infants,  in  contracts  by 215 

institution  of  action,  created  by 218 

leasing  power,  in  contract  under 216 

Lord  Redesdale's  view  as  to  219 

loss  of,  by  conduct  subsequent  to  contract 216 

married  woman  trustee,  in  sale  by 215 

PAROL  VAKiATiON  {q.  V.),  in  connection  with  the  doctrine  of 352 

partial  interest  only,  where  vendor  haa 219 

(See  Compensatio7i.) 

party  who  has  not  signed,  in  action  by 218 

personal  incapacity  of  one  party,  in  cases  of 215 

services  incident  to  the  contract,  where 215 

proposal,  not  created  by 140 

railway,  in  contract  to  construct 215 

Statute  of  Frauds,  independent  of 219 

subsequent  performance  of  unenforceable  terms,  in  cases  of 216 

tenant  for  life,  in  contracts  by 219 

in  tail  suing  on  contract  of  tenant  for  life,  in  cases  of 215 

unilateral  contracts,  in  cases  of 217 

vendor  having  no  estate,  in  case  of 219 

voluntary  settlor,  in  action  against 218 

waiver  of 217,  218,  627 

when  to  be  judged  of 216 

NAME: 

PARTIES  {q.  V.),  of 161 

NE  EXEAT: 

writ  of 553 

NEGATIVE  TEEM: 

charter-parties,  in  suits  on 413 

enforcement  of -. 412 

express,  where  not  sufficient  ground  for  jurisdiction 417 

implication  of 414 

mere  presence  of 416 

special  damage,  where 415 

NEGOTIATION : 

as  to  title  after  possession  taken 617 

doubt  whether  it  is  still  open 133,  24S 


INDEX.  761 

NEGOTIATION— C<)7i«»m«(Z.  pias. 

laches,  in  relation  to 531 

money  compensation,  for    ? 42 

not  an  election 47 

obligation  to  disclose  arising  from  course  of 341 

un-concluded 131 

NEGROES: 

specific  delivery  of 28  n. 

NEW  CONTRACT: 

must  nof  be  inconsistent  ■with  former 182  n. 

written  contract  changed  by 1S2  n. 

by  parol,  waiver  of  written 183  n. 

NON-CONCLUSION: 

of  contract 131 

NOTICE : 

appropriation  of  purchase-money,  of 639,  343,  GoO 

assign,  by 102 

with  ' 102 

charter-party,  of : 414 

conditional  waiver  of 523 

easements,  of 42-- 

executed  contracts,  in  cases  of 105 

express  term  of  contract  not  affected  by • 171 

husband's  and  wife's  consents  to  trustees'  contract,  by 104 

implied  term,  rebutting  presumption  of 171 

intention  to  resell,  of • 473 

lease,  of  covenants  in 470,  335 

owner  of  prior  title  affected  by 103 

possession  of  subject-matter  with 86 

purchaser  with 102,  103 

refusal  to  perform,  of 528 

REPRESENTATION  (q.  V.),  where  there  has  been  a 334 

revocation  of  agent's  authority,  of 265 

right  of  pre-emption,  under 141 

thn-d  persons,  to 80,  440 

TUIE  {q.  V.)  for  completion,  limiting 519,  532,  et  seq. 

unreasonable 5'.-2 

waiver  of  time,  notwithstanding 534 

withdrawal  or  retractation,  of 659  n  ,  140- 

NOTICE  TO  TREAT  : • 52 

withdrawal  of • 1^0 

(And  see  Lands  Clauses  Consolidation  Act,  1845.) 

NOVATION  : 

alteration  not  amounting  to 496 

continued  dealings  with  successive  firms,  by : ■. 500 

insurance  companies,  by • 500 

evidence  of ^^^ 

parol,  of  written  contract 495 

PARTIES  iq.  V.)  to  suit,  its  effect  on '72 


762  INDEX. 

l^OY  ATW^—Continvid.  page. 

re-sale  of  shares  (q.  v.),  upon 500 

RESCISSION  (q.  v.)hy 496,  et  seq. 

STOCK  EXCHANGE  (q.  «. ),  in  salcs  on  the 668,  73,  et  seq. 

substitution  of  tenant,  by 497 

suggestion  not  amounting  to 497 

valid  contract,  must  amount  to  a 497 

TSUISANCE : 

brew-house  is  not  necessarily  a T 472 

OCCUPATION: 

immediate,  purchase  with  view  to 519 

payments  referable  to 532 

vendor  in  person 647 

OCCUPATION  RENT : 

"  all  rents  and  profits  "  included  in 647 

condition  of  sale  entitling  purchaser  to 565 

income-tax  on  648 

no  allowance  by  way  of 548 

purchaser  in  possession,  paid  by 652 

purchaser's  wrong-doing,  where  vendor's  possession  is  owing  to 648 

vendor  in  personal  occupation  generally  pays 647 

OFFER. 132  eif  seq- 

assignment  of 102 

continuing 142  n.,  214  n. 

telegram,  b}" 143  w- 

withdrawal  of ; 141  n. 

(And  see  Acceptance,  Proposal.) 

ONUS  : 

concluded  contract,  of  proving 131 

misleading  particulars,  in  case  of 561 

WAr\"ER  {q.  v.),  of  proving 460 

OPTION: 

branch  of  court,  as  to .' 538 

converting  loan-notes  into  shares,  of 519 

delaj'  under  contract  giving 527 

exercise  of 522  n. 

HARDSHIP  {q.  V.)  and  inconvenience  arising  out  of 201 

independent  of  contract  for  lease 418,  459 

lease,  to  determine 368 

to  have 528 

PENALTY  (q.  v.),  to  pay 65 

purchase,  of 217  «.,  418,  522  n.,  531 

retirement  from  company,  of 520 

TIME  iq.  V.)  in  relation  to 527  n.,  528 

to  do  a  thing  in  either  of  two  modes 488 

OUTGOINGS  : 

apportioned  part  cf  current  ground-rent  included  in 645 

award,  up  to  date  of 639 

condition  of  sale  as  to 564 


INDEX.  763 

OUTGOING— Conimwed.  page. 

liability  as  to,  conterminous  with  right  to  rents 645 

title  made  out  in  chambers,  where 637 

vendor's  obligation  to  pay 634 

OWNERSHIP,  ACTS  OF 6\S  et  seq- 

{See  Acts  of  OwiiersMp.) 
parents,  defective  conveyance  by,  to  children 680  n. 

PARLIAMENT  : 

contract  not  to  apply  to 702,  703 

requiring  application  to 481 

injunction  against  application  to • 703,  703 

time  allowed  for  application  to 626 

PAROL: 

abatement  of  rent  by 498 

ACCEPTANCE  {q.  V.) 142,  143 

additional  terms,  where  proveable  by 318,  392 

agreement  as  to  division  line o08  n. 

antenuptial  contract ...  280,  299 

appointment  of  agent  by 114  n. ,  259. 

collateral  contract 277 

contract  added  to  or  modified  by , , 307,  372 

will  be  enforced 144  n. 

declarations  by  auctioneer 370 

EVIDENCE  {q.  13.).. .. .  157,  162.  277,  279,  284.  362  n.,  378  n.,  394  n.,  895  n. 

exchange  of  property  ...    508  n. 

gift,  possession  under 497  n. 

identification  of  legatee  by 266 

of  paper  by 268 

new  contract  by 498 

notice  engrafting  time 524 

novation  of  written  contract 495 

partition  between  several  grantees 508  n. 

reference  to  terms  arranged  by 267 

rescission  by 494 

revocation  of  agent's  authority  by 265 

trust,  equity  will  enforce 279  n. 

PAROL  VARIATION  : 

American  jurists  on  the  doctrine  of 393 

defendant,  set  up  hy '. 369 

dismissal  of  action  on  proof  of 370 

election  on  proof  of • 371 

enforcement  of  contract  with  370 

by  plaintiff 387 

evidence,  coming  out  on  the  ...    373 

lease,  in  contract  for 371,  372 

part-performance,  in  cases  of 308 

plaintiff,  alleged  by 373,  387 

reduction  of  contract  into  writing,  where  error  in 369 

right  of  common,  as  to •, 370 


764  INDDX. 

PAROL  VARIATION— CoH^mtz^d.  page. 

Statute  of  Frauds,  inadmissible  under 386 

subsequent  parol  contract,  by 386 

timber,  as  to  payment  for 373 

unfair,  where  enforcement  would  be 371 

PARTIAL  EXECUTION: 

alternative,  where  contract  is 418 

award,  of 405 

default  of  defendant,  where  impossibility  due  to  410 

distinct  lots,  where  property  sold  in  401 

prices,  where 403 

DIVISIBLE  CONTRACT  (q.  V.),  in  cascs  of 399,  407 

exceptions  to  the  principle  of  the  court  respecting 407 

future  acts  to  be  done,  where  there  are 409 

generally  not  compelled 399,  405 

honorary,  where  part  of  arrangement  is 418 

independent  contracts,  in  cases  of 403 

indivisible,  where  contract  is 399 

lease,  of  contract  relating  to 405 

malum  prohibitum,  where  part  of  arrangement  ia 418 

marriage  contracts,  in  cases  of 407,  463 

moiety,  in  case  of  contract  by  owner  of 399 

negative  terms,  where  contract  contains 412, 

one  lot,  in  case  of  contract  for  sale  in 399 

option  to  purchase,  in  case  of ' 418 

partnership  contract,  in  case  of 405 

ship  and  freight,  of  contract  relating  to 400 

unenforceable  part  performed  before  suit,  where 418 

works,  of  contract  relating  to 406 

PARTICULARS  : 

imperfect  enumeration  of  prohibited  trades  in 579 

misleading ......." 544 

PLAN  (q.  v.),  referring  to 456 

sale  of  land  by  auction  act,  1867,  as  to 348 

(And  see  Conditions  of  Sale.) 
PARTIES: 

adding 1 80 

adverse  claimants ^ 77,  80,  81  n. ,  82  n. 

rights,  persons  having 71 

AGENT  (q.v.) 93,  113,  120 

ASSIGN  (g.  V.) 95 

assignee  in  bankruptcy 99 

under  insolvency 77 

assignor 95 

auctioneer 120,  661 

bare  trustee 79 

COMPANY  (q.  V.) 107 

conflicting 67  n.,  68  n.,  71  n. 

contract,  parties  to,  parties  to  suit 66 

conveying 70 


IXDEX.  765 

PARTIES— Continued.  page. 

counterclaim,  by 80 

creditors  of  vendor 76  n.,    90 

death  of 88  n. 

defendant  not  interested  in  all  relief  claimed. 79 

DESCKIPTION  iq.  V.)  oi 160,  162,  244 

devisee 88,    91 

directors  of  unincorporated  company 75 

donee  of  power 73 

equity  of  redemption,  person  interested  in 67 

former  practice  of  court  of  chancery,  under 66,     79 

general  rule,  the 66 

exceptions  to  the 72,     79 

heir 88,     91 

inconsistent  rights,  persons  having 71 

infant  heir 91 

insolvent  lessee 97 

judgment  creditor 67  n. 

Land  Transfer  Act,  1875,  in  cases  under 81,  87,  439 

legatees 80,  92  n. 

lessee ''O 

lots,  purchasers  of  separate 69 

involved 77 

lunacy  of 129 

MAKRIED  WOMAN  (q.  V.) 127 

misjoinder  of 71,  113  n. 

♦mortgagee 67,  68,  80,  95 

mortgagor 68 

multifariousness  of 78 

multiplicity  of  suits  avoided  by  relaxation  of  rule  as  to 76 

^0  interest,  person  having 71,  79 

novation,  in  cases  of : 72 

personal  representative 76,  88 

pleading,  where  objection  precluded  by 74 

possession,  railway  company  in 70 

present  practice,  under  the 79,  81 

previous  contract  impeached,  where 69 

interest  in  estate  or  purchase-money,  where 73 

principals H^ 

property  sold  twice  over,  where 69 

.    provisional  assignee  in  insolvency ■ .-  103  n. 

purchase-money,  person  claiming  interest  in 73 

registered  estates  or  rights,  persons  having 81 

remainderman - 73 

reversioner 74 

RtroES  OF  cotJRT  (?•  "O-)  as  to 79 

second  purchaser "9 

separate  estate,  trustees  of 127 

several  contracts,  where 78 

objects,  where  suit  had 70 

shareholders - • 75 


766  INDEX. 

VARTIES—Contiin/ed.  pabe. 

solicitor 82 

some  suing  or  suedon  behalf  of  all '''5,     78 

stakeholders 119,  120 

steward. 83,     68 

Stock  Exchange,  in  cases  of  sales  on 72 

STRANGER  (q.  V  )  to  the  contract 73,  82,     87 

necessary  party  to  conveyance 66 

sub-mortgagee 95 

sub-purchaser 74 

tenant  of  vendor 70 

third  persons 80,  440 

treasurer  of  jointrstock  company 75 

trustees 76,  78,  80,-83,     88 

ultimate  purchaser 72 

uniting  v^ith  others  in  same  situation 75  ?i. 

voluntary  settlor 78 

widow 90 

PARTITION  : 

contract  for 16,  677 

parol 508  TO. 

PARTNERSHIP: 

accounts,  action  for 681  n.,  409 

at  will,  contract  for 38,  681 

capital,  contract  silent  as  to 168,  405 

contract  for,  generally  not  enforced 681 

illegal ■*682 

tainted  with  fraud,  hardship  or  improper  conduct 682 

where  enforced 681 

contract  to  execute  deed  of 681 

executory  and  executed  contracts  of,  contrasted 408 

injunction  in  cases  of 4('8,  681 

member  of  company,  of 38 

part-performances  of  contract  for 681 

partial  execution  of  contract  relating  to 405 

specific  relief  on  articles  of •  •  682 

RESCISSION  (q  V.)  of  contract  of ' •  334 

sale  of  share  in 179,  184 

uberrima  fides 341 

valuatioa  at  end  of 166 

variation  in  terms  of 498 

PART-PAYMENTS: 

jurisdiction  of  court  of  chancery  as  to 662,  663 

lien  created  by 659 

repajanent  of 659 

sub-purchaser,  by 660 

PART-PERFORMANCE 400  w. 

acceptance  of  goods,  by 284 

acts  prior  to  contract  cannot  be 300 

admeasurement  of  estate  not  an  act  of 301 


INDEX.  767 

PART-PERFORMANCE— Con^mr^eff.  page. 

alleged  contract  denied  but  another  admitted,  wliere 307 

alteration  of  plaintiff's  position  by 463 

alternative  remedies,  in  cases  of ^ 288,  29(> 

appropriation  of  money  is  not 301 

arbitrators,  acts  done  by,  are  not 288 

auction-duty,  by  payment  of 297 

building  by 294 

cohabitation  may  be 800 

compensation,  where  acts  admit  of , ' 295 

compulsory  taking  under  Lands  Clauses  Act,  by 284 

consistent  with  the  contract  alleged,  must  be 284 

consent  to  lease,  by  giving 290  n. 

corporations,  in  contracts  by 286,  293,  311 

damages,  answerable  in 43,  295 

defense  claims  benefit  of  the  statute,  where 303 

delivery  of  rent-roll  and  abstract  to  purchaser  not 302 

dissolution  of  partnership,  by 303 

essentials  of 283 

execution  of  deed  by  vendor  not 301 

lease  by  married  woman  not 303 

settlement  by  husband  not 300 

expenditure  distinguished  from  possession  as  an  act  of 295 

review  of  the  cases  on,  as  an  act  of 297 

FRAUD  {q.  V  )  prevented  by  the  operation  of  the  principle  of 286 

where  refusal  to  perform  does  not  amount  to 287 

honorary  engagement,  of 289 

incomplete  contracts,  of 290,  308 

injustice  prevented  by  the  operation  of  the  principle 286 

instruction  for  lease  or  conveyance  not  acts  of 301 

knowledge  of,  in  party  to  be  charged ' ...  287 

lapse  of  time  in  relation  to 294 

laying  out  money,  by 294,  499 

marriage,  acts  connected  with,  may  be 299  n.,  300 

alone  is  not 298 

contracts,  in  respect  of  293 

mutual  wills,  in  cases  of 289 

new  contracts  supported  by  acts  of 499 

objections  raised  after 155 

parol  evidence  let  in  by • 283,  303,  et  seq^ 

•        origin  of  the  jurisdiction  in  cases  of ' 43 

payment  of  money  not 301  n. 

pleading 306  n. 

possession  as  an  act  of 

acquiesced  in 293,  294 

adverse 290 

both  parties  bound  by 293 

company,  against 293 

family  arrangements,  under 294 

marriage  contracts,  under 293^ 

occupier,  by 293^ 


768  INDEX. 

PART-PERFORMANCE— Continued.  faqb  • 

owner,  by 292 

stranger,  by 291 

tenant,  by 285,  291 

preparatory  acts  not 295,  301 

principle  of,  as  an  exception  to  the  Statute  of  Frauds 282,  286,  307 

purchase-money,  part  payment  of,  is  not 288,  296 

purchase  of  release  of  a  right  not  an  act  of 301 

railway  cases,  in 42 

rebuilding  of  party-wall  as 285 

referrable  to  contract,  must  be 284 

no  other  title,  must  be , 285 

registration  of  deed  by  vendor  not  an  act  of 301 

remainderman,  when  binding  and  when  not  binding  on 287 

rent,  payment  of  additional,  as 297 

rescission  after 493 

seal,  where  want  of  ; ...  290 

service,  by 300  n. 

siding,  construction  and  user  of ,  -as 290 

specifically  enforceable  contracts,  applies  only  to 288 

Statute  of  Frauds,  may  preclude  party  from  setting  up 281 

strangers'  acts  are  not 287 

sufficient  evidence  of  the  contract,  cannot  be 284 

surrender  of  lease,  by 303 

vague  contract,  of 304 

vendee  may  insist  on 609  n. 

work  and  labor  done,  in  cases  of 289,  311 

PATENT : 

contract  contemplating  the  obtaining  of 518 

PATENT  MEDICINE  : 

contract  relating  to 682 

PAYMENT : 

charter  party,  in  pursuance  of 28  w. 

contract  satisfied  by 23,    25 

instalment,  by  way  of 659 

neglect  to  make 449 

notice  of  mortgage  after 660 

such  a  sum  as  A.  may  fix,  of .  • '. 168 

time  of,  of  essence  of  contract 512  n. 

time,  when  not  fixed 537  n. 

PAYMENT  INTO  COURT ; 

acts  of  ownership,  on  the  ground  of 618,  656,  657 

admission  of  title  by  purchaser  in  possession,  upon 653 

affidavit  in  support  of  application  for 657 

before  delivery  of  defense 657 

contract  allowing  possession  to  be  taken  before  completion  of  title,  in 

case  of 654,  655 

deduction  of  income-tax  in  cases  of 657 

election  between,  and  givmg  up  possession 654,  656 

instalment  of  purchase- money  received  by  vendors,  of 655 


INDEX.  769 

PAYMENT  INTO  COURT— Continued.  pasb. 

interest  payable  after  time  appointed  f or 653 

laches  on  vendor's  part  in  cases  of 654 

loss  of  purchase-money  in  consequence  of  opposition  to  order  for 658 

motion,  ordered  on 657 

payment  by > 658  «. 

possession  under  some  other  title,  in  cases  of 656 

rent  of 656 

stakeholder,  where  purchase-money  is  in  hands  of 658 

vendor's  right  to  require 653 

PECULIAR  PROPERTY: 

specific  performance  in  regard  to 13  ?i.,  29  7i. 

PENAL  SUM  OR  PENALTY: 

alternative  contract,  in 61,  65 

amount  of,  largeness  or  smallness  of 62 

benefit  of,  and  of  contract,  where  different  persons  would  take 64 

bond,  contained  in 57 

common  law  remedy,  as  regards 57 

compensation,  where  fixed  sum  to  be  paid  by  way  of 60 

contracts  with  a 55  n.,Gl  fi.,  62  ?i. 

classification  of 55 

general  rule  of  equity  as  to 56 

intention  governs  construction  of 60,  64 

unreasonable  unless  giving  option 65 

where  enforced 56 

where  not  enforced 55 

courts  of  equity,  how  regarded  by 60 

effect  on  the  jurisdiction  of  a  clause  for  paj-ment  of 55 

election  between  performance  and  payment  of 55,  56,  60 

to  pay,  not  imported  by  contract  being  comprised 'in  bond 59 

form  of  contract  as  to •. 60 

higher  rate  of  interest  not  a 650 

increased  rent  not,  a  (cf . ) 58,  65 

where  there  is  a  stipulation  for  forfeiture  in  addition  to 65 

liquidated  damages  distinguished  from 57 

obligation  and  contract  distinct,  where 59 

penalty  strictly  so  called,  where  a 56 

rights  of  obligee  with  respect  to 59 

sum  single  and  continuing  act,  where 64 

variable,  where .    64 

PERFORMANCE: 

alternative,  of 486,  490 

common  law,  at 457,  510 

CONDITION  (?.«.),  of 446,  447 

consent  of  third  party  necessary  to 481 

continuous  acts,  of 35 

delay  in 524 

enforcement  of  actual 12 

complete,  where  possession  taken 156 

49 


770  INDEX. 

PERFORMANCE— Con  imu^.  paok. 

essentials  to  enforcement  of 155 

exact 457 

frequent  breaches,  where 36 

immediate 460 

IMPOSSIBILITY  {q.  V.)  of 410,  444,  448,  460 

infant  heir,  by 460 

lease,  of  contract  to  accept 156^ 

MARRIAGE  CONTRACT  {q.  V.),  in  cases  of 461,  462 

neglect  in 505 

plaintiff,  by 454,  et  seq. 

alternation  of  position,  involving 461,  et  seq. 

collateral  contract,  in  respect  of 458,  460 

express  terms,  of 455 

future  acts,  in  respect  of 468,  465 

implied  terms,  of 455 

impossible 460 

non-essential  terms,  of 454,  458,  470 

prevented  by  defendant 460 

representations  of  future  acts 455,  et  seq. 

substantial  part  of  contract,  of 461 

waived 460 

positive  contract,  of 478 

REPRESENTATION   {q.  V.),  of 147,    455 

result  of  default  in 12 

separate  contemporaneous  contracts,  of ■ 404 

unenforceable  by  court 35 

unless,  where 37 

WAIVER  {q.  V.)  oi 460,  477 

worse  than  non-performance,  where 43 

{And  see  Part  perf&rmance,  Specific  Performance. ) 
PERSON: 

error  in  regard  to 98 

PERSONAL : 

acts     • 36  n.,  45  n.,  177  n. 

contracts."."."*'.' 92,  96,98,  113 

incapacity,  a  defense 124  to.,  187  n. 

motives  disregarded  by  Lord  Thurlow 97 

property 13  ». ,  34  n. 

relation,  where  motive  to  contract 97 

services,  contracts  for 43,  44,  815 

{And  see  Hiring  and  Service.) 

PLAINTIFF : 

conflicting  parties  should  not  be  joined  as 71  n> 

PLAN: 

act  of  parliament,  referred  to  in 45& 

doubt  as  to  identification  of 177 

exact  performance  of  scheme  not  rendered  obligatory  by 456 

exhibited  by  vendor 456 

incorporated 244/1.,  466 


INDEX.  771 

PLAN — Continued.  pa«s. 

intended  division  of  estate,  showing 458 

misleading 374 

present  state  of  property,  representing 457 

silence  of  contract  as  to 456 

PLEA: 

covin,  of 320 

fraud,  of 320 

statute  of  32  Henry  VIII,  c.  9,  of 8,  99 

STATUTE  OP  FRAUDS  {q.  V.),  of 242 

PLEADING : 

adding  parties 80 

admissions  in 274,  615,  624 

alternative  relief 48,  505,  660 

amendment 48,  307 

compensation,  case  for 570 

connection  of  subject-matter  of  contract  with  claim 157 

counter-claim 80,  538,  660 

defect  in  title  put  forward  in 609 

distinctness  in 120  n..  122  n.,  128,  243 

implied  contract 273 

misjoinder 71,  113  «. 

notice  to  bare  trustee 80 

third  parties 80 

objection  as  to  parties  precluded  by 74 

PLEA  iq.  v.), 99,  242,  243,  320 

remedy  or  relief  over 79 

separate  trials 79 

several  causes  of  action 79 

special  case 539 

dating  contract 306  n. 

STATUTE  OF  FRAUDS  {q.  V.) 242,  272,  et  seq. 

third  parties 80 

waiver 621 

{And  see  Judicature  Acts,  1873  and  1875,  Parties,  Rules  of  Court.) 

POSSESSION: 

account  of  rents  and  profits  against  purchaser  in 505 

agreement  to  pay  interest  implied  in  act  of  taking 649 

acquiescence  in  non-performance  of  promise,  not  amounting  to    532 

complete  title  previously  shown,  with 519 

continuing  in,  under  arrangement 533 

estate  and  purchase-money,  of 635,  633 

immediate,  condition  for 473 

injunction  restraining  company  from  continuing  in 550,  559 

intended  lessee,  taken  by 170 

lapse  of  time  where  plaintiff  is  in  53O 

often  taken  before  completion ,  .• 635 

order  for  delivery-up  of 655 

PART-PERFORMANCE  {q.  V.),  an  act  of 291 


772  iXDEx. 

VOSSESSIO'S— Continued.  pase. 

purchase  of  right  to 655  n. 

purchaser  turned  out  of 576,  653 

purchaser's  obligation  to  take 634 

referable  to  contract  to  give  a  fair-consideratiou 167 

some  other  title 655,  656 

returned  by  purchaser 650,  65S 

reversionary  estates,  on  sales  of 653 

specified  day,  to  be  given  on 519 

statutory  power,  taken  under 652 

tenant  in  common,  as 655 

to  vendor,  as 655 

time  at  which  purchaser  can  prudently  take 638 

transfer  of,  where  no  stipulation  as  to 635 

under  the  contract 531 

under  parol  gifts , 479  n.,  508  «. 

vacant 639  n. 

vendor  in,  is  not  bailiff  to  purchaser 645 

vendor's  obligation  to  give 634 

waiver  not  worked  by 618 

worked  by 616,  618 

without  receipt  of  rents 654 

POSTING: 

of  ACCEPTAXCE  {q.  V. ),  contract  dates  from 144 

POST-OFFICE: 

acceptor  not  answerable  for  casualties  of 145 

PRACTICE. 

(See  Costs,  Pleading,  Rules  of  Court.) 

PRAECIPE  QUOD  REDDAT 6 

PRE-EMPTION,  RIGHT  OF: 

contract  made  in  forgetfulness  of 191  n. 

covenant  to  give 102  n. 

enforced 16 

limited  by  personal  nature  of  acts  to  be  done 97  n. 

notice  in  pursuance  of 141 

statutory  offer  of,  not  made 612 

violation  of 16 

PREMIUM: 

contract  to  reduce 35 

lease  conditional  on  payment  of 516 

PRESUMPTION : 

bona  fides,  of 438 

implied  term,  of,  may  be  rebutted  by  notice 171 

new  contract,  of 499 

previous  parol  contract,  of 390 

settlement  silent  as  to  promise,  wliere 150 

TITLE  {q.  v)  depending  upon 432 

PRETENDED  TITLES 99 


INDEX. 


773 


PRICE :  Txn. 

arbitrators,  fixed  by 699,  165 

award  of  surveyor,  to  be  determined  by 639 

defendant  preventing  ascertainment  of 165 

determination  of 165 

different,  for  different  parts  of  subject-matter 403- 

essential  ingredient  of  contract 163 

fair 163,  164 

inadequacy  of 206 

(And  see  Consideration.) 

instalments,  to  be  paid  by 410 

Lands  Clauses  Act,  fixed  pursuant  to 6,  52,  166 

mode  of  ascertaining : 

alternative 165 

essential 163,  164,  699 

no  election  as  to 165 

not  essential 163,  166,  168 

provided  by  contract 164 

omission  of 392 

referees  as  to 166  n. 

reserved 349 

Roman  law  as  to  ascertainment  of 164 

third  person,  to  be  fixed  by 337,  186,  163 

unascertained 162 

valuers,  to  be  ascertained  by 163,  183 

QAnd  see  Part  Payment,  Purchase  Money.) 
PRINCIPAL  : 

AGENT  {q.  v.),  sued  with. 117,  119 

MISREPRESENTATION  {q.  V.),  innoccnt  of 320 

named 113 

question  whether  contractor  is,  where 117 

sued 113 

suing 113,  115,  117 

unnamed 113 

PRINTED  NAME: 

regarded  as  signature 254 

PRIVITY : 

of  contract 50 

of  estate 50 

PROFIT: 

on  appropriated  purchase-money 651 

PROMIt^E 146 

{See  Bepresentaiion.) 

PROMISSORY  NOTE: 

compelling  indorsement  of 16 

contract  as  to 23 

PROMOTERS : 

contracts  by 107 

{See  Company.) 


774  INDEX. 

PROPERTY:  pag«- 

passing  of  the ^^^ 

where  no  right  to,  taken  away 43  ».,     47 

PROPOSAL: 

and  ACCEPTANCE  (q.  v.),  contract  constituted  by 132,  144 

creates  no  mutuality,  no  obligation 140 

determined  by: 

WITHDRAWAL  {q.  V. )  of  proposcr 140 

refusal  of  person  to  whom  it  is  made 140,  141 

(And  see  Eetractration.) 

election,  giving 143 

formal  contract,  subject  to  provision  as  to  250 

invalidity  of,  without  acceptance 132 

leaving  term  to  be  ascertained  or  decided 137 

marriage  treaty,  on 1^1 

memorandum  of,  distinguished  from  memorandum  of  agreement 132 

not  revived  by  tender  of  acceptance  after  refusal 141 

payment  on  a  particular  day,  involving 138 

promise,  by ^46 

REPRESENTATION  (q.  V.),  hj 146 

SHARES  (q.  v.),  to  take 1^6 

variance  between,  and  acceptance 136,  142 

variation  of,  by  proposer 143 

verbal,  distinguished  from  written 151 

PROSPECTUS : 

Companies  Act,  1867,  as  to 342 

material  fact,  silent  as  to 342 

PROTEST: 

delay  against 533 

mere "oo 

PUBLIC: 

fraud  on  the 357 

injury  to  the 1^2 

PUBLIC  DUTY: 

arising  from  private  contract 4,      5 

PUBLIC  HOUSE: 

deposit  on  sale 661 

essentiality  of  time  in  contracts  relating  to 518 

sale  of  stock  in 517 

(And  see  Going  Concern.) 

PUBLIC  POLICY: 

application  to  Parliament  on  grounds  of 702 


assignment  contrary  to . 


96 


contract  against 222  7i. 

court  of  equity  cannot  judge  of '''02 

delegation  of  statutory  powers,  as  to 101 

illegal  contracts,  as  to  proceedings  on 23 

separation,  as  to  contracts  for 688 


INDEX.  775 

PUFFER:  »*«■. 

all  parties  having  liberty  to  bid,  in  cases 347 

FRAUD  (g.  V.)  in  employment  of 348 

more  than  one 348 

one 347 

sale  of  land  by  Auction  Act,  1867,  as  to 348 

vendor's  solicitor 188 

without  reserve,  where  sale  is 347 

PURCHASE-MONET : 

amount  of,  left  by  contract  for  subsequent  ascertainment 639 

appropriation  of,  by  purchaser 639,  643,  650 

constructive  trusteeship  of 634 

estate  and,  mutually  exclusive 653,  635 

inadequacy  of 203 

{And  see  Consideration.) 

interest  in,  under  prior  contract 73 

part-payment  of 288,  296 

PAYMENT   INTO  COURT  (q.  V.)  oi 653 

profit  made  by  purchaser  on  appropriated 651 

purchaser's  obligation  to  pay 634 

(And  see  Lien,  Price.) 

PURCHASE : 

pendente  lite 635  n. 

PURCHASER: 

constructively  a  trustee 634 

obligations  of 634 

QUARRY: 

COMPENSATION  {q.  V.)  foT  stone  subtracted  from 592 

contract  to  work 40 

QUASI-CONTRACTS 61 

{See  Lands  Clauses  Consolidaiion  Act  1845.) 
QUIT  RENTS : 

incidents  of  tenure 577 

RAILWAY : 

abandoned 25 

branch,  contract  to  lay  down 294 

confidential  services  in  working 215 

construct,  contract  to 25,  40,  177,  215 

contracts  conditional  on  formation  of 470,  485 

neglect  to  complete  purchase  after  making 655 

sale  of 55^ 

siding ^ 

user  of,  contract  as  to 406 

work,  contract  to 47 

works,  contract  to  execute 406 

for  convenience  of  plaintiff's  lands 42 

RATIFICATION : 

acquiescence,  by 269 

agency,  may  take  the  place  of 259 


776  INDEX. 

HATIFICATION—Continmd.  pasb. 

benefit  of  contract,  by  taking 259 

corporation,  by 235 

essentials  of 263 

infant,  by 215  7i. 

l^rinted  name,  of .• 254 

{And see  Signature.) 

STATUTE  OP  FRAUDS  {(J.  V.),  may  take  contract  out  of 259 

vague  expressions  not  implied  from  259 

KEAL  ESTATE : 

consent  of  wife  to  sell •182  n. 

contract  to  purchase 50  n. 

contract  for  sale  of 400  n. 

conveyed  without  warranty 452 

gift  of • 204  n. 

improvement  by  vendee 289 

specific  performance  as  to 13  n. ,  34  n. 

variance  between  description  and  quantity  of 421  n. 

veodor  of,  has  choice  of  remedies 13  n. 

must  give  good  title 428  n, 

EEASOXABLE  : 

contract  must  be 181  n. 

RECALL : 

of  offer 1-11  n.,  142  n. 

RECEIVER: 

ACTS  OF  OWNERSHIP  (q.  v),  in  consequence  of 618,  656,  657 

appointment  of.  pending  sale , 558 

RESCISSION: 

of  contract 497  /i. 

RECITAL : 

evidence  of  contract 131 

RECOVERY  OF  LAND : 

counter-claim  in  action  for 538 

equitable  right  to  specific  performance  appearing  in  action,  for 539 

RECTIFICATION : 

ambiguous  writing,  by 379 

articles  of  agreement,  of 377 

bond,  of 395 

common  error,  of 376  et  seq. 

consequential  relief  in  addition  to 395 

election  between  amendment  and 378 

intentional  omission,  in  cases  of 385 

judicature  act,  1873,  by  virtue  of  . . ." = 394 

mistake  of  one  party,  in  cases  of 378 

plaintiff,  for 364 

parol  evidence  admitted  as  a  ground  for 378 

payment  of  money,  of  contract  for 395 

plaintiff  suing  for  specific  performance,  where 387  et  seq- 

policy,  of 375,  377 


INDEX.  777. 

BECTIFICATIOI^^— Continued.  page. 

previous  parol  contract,  by  reference  to 390 

prior  actual  contract,  requires 377 

register  of  shares,  of 542 

rent,  as  to  amount  of 388 

strongest  possible  proof  required  for 379 

KEFEE : 

contracts  to,  not  enforced 699  n. 

REFERENCE  TO  TITLE  : 

admission  of  title  (g.  v.)  by  defendant's  pleading,  in  case  of 615 

answer,  before " p23 

CERTIFICATE  (q.  V.)  of  result^ of 627  et  seg. 

chambers,  to 627 

compromise  of  disputed  rights,  in  cases  of 602 

conditions  of  sale,  in  accordance  with 614 

costs  of 630 

court  of  chancery,  at  what  stage  directed  by  the 621,  624 

covenants  in  lease,  having  regard  to 615 

decision  of  objection  without 615 

delay,  questions  of,  raised  on  application  for 625  n. 

disallowance  of  purchaser's  costs  of  ^  610 

either  party  generally  has  a  right  to 616 

everything  connected  with  the  title,  may  extend  to 624 

evidence  under 627 

form  of 615,  624  n. 

frivolous  questions  raised  by  the  answer,  where 622 

general  terms,  in 609 

good  holding  title,  confined  to 615 

hearing,  at  the 615 

before  the 615,  622 

immediate,  where  vendor  should  apply  for 624 

hmited 615,  625 

loss  of  right  to 618 

motion,  on    622,  623 

by  purchaser  defendant  for 623 

no  objection  at  all,  though  purchaser  has 609 

not  confined  to  sales  of  real  estate 610 

only  one  objection,  where 609 


open 


625- 


origin  of  purchaser's  right  to 609 

present  practice,  how  obtainable  under 624 

prevented  by  defenses  which  failed  at  the  hearing 630 

purchaser  defendant  is  entitled  to 609- 

plaintiff  seeking 610 

purposes  for  which  premises  were  taken,  having  regard  to 615 

question  of  title  only,  where 622,  623 

reference  back  to  chambers  after 629 

resulting  in  showing  that  good  title  was  shown  in  due  time 610 

sale  with  all  faults,  in  cases  of 424 

shares  in  railway  companies,  in  respect  of 610- 


778  INDEX. 

REFERENCE  TO  TITLE— Continued.  pagm. 

mines,  in  respect  of "1*^ 

time  allowed  for  completion  of  title  under 626 

at  which  title  shown,  should  include  inquiry  as  to 624 

not  allowed  for  completion  of  title  under 626 

questions  of,  raised  on  application  for 625  n. 

varjing  nature  of 610 

vendor  cannot  except  to  the  title  on 610 

selling  such  interest  as  he  has,  in  cases  of 611 

Vendor  and  Purchaser  Act,  1874,  under 627 

waiver  of  objections  should  be  recognized  in  judgment  directing 610 

where  purchaser  has  asked  for 610 

of  right  to,  by  purchaser 615 

by  vendor 615 

when  title  may  be  made  out  under 625 

where  not  directed 610,  615 

REFRESHMENT-ROOM : 

accommodation  in,  contract  for 177 

assign  of  lease  suing  for  occupation  of 102 

enforcement  of  covenant  in  lease  of 407 

REFUND : 

covenant  to  convey  carries  an  obligation  to 661  n. 

REFUSAL : 

of  one  party  to  perform 495 

PROPOSAL  iq.  V. )  determined  by 140,  141 

to  register  transfer 673,  674 

REGISTER : 

application  to  rectify,  under  Companies  Act,  1862 542 

shipping,  of 683,  685 

substitution  on,  part  of  contract 676 

REGISTER  COUNTIES  : 

contracts  relating  to  land  in 103 

REGISTERED  LAND  OR  CHARGE: 

contracts  relating  to  land  in 81,  439,  642 

REGISTRATION : 

of  transfer  of  shares  {g.  v.) 664,  665,  668,  671,  675 

REGISTRY  ACTS: 

in  United  States 686 

RELATIONS  : 

agreements  between 85  n. 

RELIEF : 

alternative 48,  505,  662 

grounded  on  right  perfect  in  itself,  and  resulting  from  transactions 
under  contract 409 

.RELIEF  AFTER  JUDGMENT: 

attachment,  by  writ  of 556 

costs,  by  order  for  payment  of 556 

damages,  by  way  of 557 


INDEX. 


779 


EELIEF  AFTER  JUDGMENT— Contmwed.  pasb. 

injuuction,  by 558,  559 

necessary,  when  555 

payment  and  delivery  of  deeds,  by  order  for 556 

receiver,  by  appointment  of 558,  559 

rescission,  by  order  for 556 

sale,  by 558 

sequestration,  by 556 

stay  of  proceedings,  by 557 

vendor's  lien  [q.  v.),  by  enforcement  of 557 

vesting  order,  by 559 

writ  of  assistance,  by 559 

REMAINDERMAN  : 

leasing  power,  bound  by  contract  under 216 

PART  PERFORMANCE  {q.  V. ) ,  when  not  bound  by  acts  of 287 

prejudiced  by  contract  of  tenant  for  life 189 

suing  or  sued "^^ 

tenant  in  tail,  not  liable  on  contracts  of 73 

REMEDY: 

alternative 25 

COMMON  LAW  {q.  V.) ♦. .• 15 

RENEWAL: 

covenant  for,  not  enforced 469 

ztlira  vires 190 

variation  of 373 

delay  under  contract  giving  right  of 527 

ecclesiastical  corporation,  by 485 

mining  lease,  of 471 

sub-lessee,  to 194 

s^ippressio  veri  in  obtaining 188 

time  of 516 

RENT: 

abatement  of,  by  parol 496 

by  written  contract 499 

account  of  arrears  of 451 

additional,  payment  of 297 

ai'bitrators,  referred  to 186 

commencement  of,  not  stated 168 

fee-farm     - 611 

mode  of  reservation  of,  held  essential 484 

occupation 564,  648 

reduced  proportionately  to  deficiency  of  acreage 589  n. 

RENTS  AND  PROFITS: 

actually  received,  vendor  is  usually  charged  with 644 

contract  silent  as  to 636 

dispossession  of  purchaser,  in  case  of 652 

election  between,  and  interest 649 

interest  and,  mutually  exclusive 635,  649 

payment  into  court  of 656 


780  INDEX. 

RENTS  AND  PROFIT S—C&ntiiimd.  p^eK. 

possession  without  receipt  of 654  n. 

reserved  to  vendor  by  conditions  of  sale 640 

time  from  which  purchaser  takes,  where 

contract  fixes  date  for  completion 637 

fixes  no  date  for  completion 636 

estate  sold  is  reversionary 652 

interest  much  exceeds  rents  and  delay  is  owing  to  vendor 637 

title  is  made  out  in  chambers 637 

willful  default  in  relation  to 644,  646 

who  entitled  to MS  n.,  663  n, 

REPAIRS  : 

contract  to  do 39,  40,  412,  447.  461 

(And  see  Building  Contract. ) 

engines  and  rolling  stock 44 

lessor,  by 455 

specific  performance  as  to 40  7i. 

who  liable  for 638  n. 

REPORT ;.  •  •  628,  631 

{See  Certificate.) 

REPRESENTATION  : 

accounts,  founded  on 335 

acts,  by 313 

act  not  done  in  relianee  on 146  n. 

acted  on  by  other  party 146 

agency,  of 257 

clear  and  absolute 147 

contract  constituted  by 148 

founded  on 146 

directors,  by 323 

discovered  to  be  untrue 341 

distinct  effect  of 334 

dry-rot,  as  to 578 

executor,  by 1 53 

existing  facts,  of 146,  153,  319 

■  false,  classified  by  Stephen  J 146  n. 

falsity  of 319 

{And  see  Misrepresentation.) 

future  things,  of 146,  455 

general  statement,  not  counterveiled  by 334 

insurance  company,  by 322  n. 

intention,  of 148,  322  et  seq. 

lease,  as  to  existence  of 153 

marriage  not  induced  by   150- 

marriage-treaty,  on 146,  147,  150  et  seq. 

means  of  verifying 327  et  seq. 

notice,  as  to  fact  of  which  there  would  be  implication  of 333 

past  things,  of 146 

plaintiff,  by 455 

PLA]5i  {q.  v.),  by 456 


INDEX.  781 

REPRE  SENT  ATION—  Continved.  page. 

position  in  life  altered  on  faith  of 152 

stranger,  by 153 

subsequent  settlement  silent  as  to 150 

truth  of,  obligation  to  know 322 

vague 147,  325 

vendor,  by 455 

KEPUDI  ATION: 

after  party  has  disabled  himself  from  making  restitution    355 

of  contract G59 

REQUISITIONS : 

between  vendor  and  purchaser 614 

inconvenient  but  legitimate 566 

precluded , 613 

time  for  sending  in 52 1 

Vendor  and  Purchaser  Act,  1874,  as  to 539 

WAIVER  {q.  V.)  of 617 

RESCISSION: 

act  of  God,  when  restitution  has  been  rendered  impossible  by  . . .  355,  357 

action  for  deceit  after  loss  of  right  of 357 

acts  tending  to 357 

agreement,  by  mutual 492,  605  n. 

with  a  third  person  by 500 

alternative  claim  for 505 

assurance,  of  contract  for 375 

bar  to  performance,  a 492 

before  day  fixed  for  transfer  of  possession 661 

BREACH  OF  TRUST  {q.  V.),  foi ^ 200 

collateral  to  the  contract,  is 494 

concealment,  for 338 

condition  for 501,  -m,  603 

conduct,  by 494,  506 

not  amounting  to - 496 

consent  generally  requisite  to 501 

defect  in  thing  sold,  for 425 

delay,  for 506 

election  prevented  by 352 

events  prior  to  the  contract,  for 443 

executed  contracts,  of - 319,  337 

false  statements  believed  to  be  true,  for 319 

fishery,  of  contract  for  lease  of 375 

FRAUD  {q.v.),iox 181,  337,  354,  368  n.,  505 

fraudulent  misconduct,  for 506,  507 

use  of  power  of 565 

French  law  as  to  209,  355 

fresh  agreement,  by 496,  507 

impossibility  of  performance,  for 356 

impossible  . .  - 352,  858,  356 

inadequacy  of  consideration  (g.  v.)  as  a  ground  for 204,  210 

inequitable 353 


782  INDEX. 

RESCISSION— C(?n<tn«<f<i.  page. 

insolvency  of  other  party,  upon 506 

instalment,  for  default  in  payment "04 

intended  lessee,  at  suit  of 1^5 

loss  of  right  of 352,  503 

lunacy  of  party,  for 129  n. 

material  misdescription,  for 570 

misleading  particulars,  for • 561 

MISREPRESENTATION  (q.  V.)  for 334,  351,  355,  583 

MISTAKE  (g.  V  ),  for 355,  505 

of  both  parties 375 

of  law 379 

of  one  party 369 

non-disclosure  for 338.  423 

non-existence  of  subject-matter,  for 442 

NOVATION  {q.  v.),  by 497 

order  for,  after  judgment 556 

other  remedies  open,  notwithstanding  loss  of  right  of 355 

parol,  by 494 

partnership  contract,  of 334 

part-performance,  where  there  has  been 494 

persistence  in  objection,  on 595 

plaintiff's  conduct,  precluded  by 354,  356 

possession,  after  taking 355 

power  to  rescind,  by  exercise  of •'  501 

reception  of  benefit  under  the  contract,  after 354 

refusal  of  one  party  to  perform,  upon 495,  505 

restitutio  in  integrum  a  condition  of 354 

right  of  way,  for  concealment  of 331 

SHARES  (q.  v.),  of  contract  to  take 352,  354 

Statute  of  Frauds,  in  cases  of  contracts  under 494 

stranger  party  to  action  for 86 

suggestio  faUi,  where 345 

summary  of  modes  of 492 

suppression  of  material  fact,  for 338 

third  person,  when  property  has  passed  to 352,  357 

when  restitution  has  been  rendered  impossible  by  act  of 355,  356 

time  for  exercise  of  right  of 503 

TITLE  (q.  v.),  for  misrepresentation  as  to 331 

total  abandonment,  by 495 

variation  from  description,  for 425 

void,  where  contract  is  to  be  in  specified  event 501 

waiver  of  right  of 503 

winding-up  order,  after 352,  354 

RESERVE 347,  349. 

{See  Sale,) 
RESTITUTIO  IN  INTEGRUM 354 

RESTRAINT: 

of  trade 611  w. 

RESTRICTIVE  STIPULATIONS 611,  625 


INDEX.  783^ 

RETRACTATION:  pace. 

notwithstanding  time  for  acceptance  (q.  v.)  prescribed 141 

offer  of 132 

{And  see  Proposal,  Withdraical.) 

REVERSIONARY  INTEREST: 

auction,  sold  by  213 

burden  of  proof  in  actions  relating  to 811,  213 

inadequacy  of  consideration  in  sale  of 211 

payment  of  interest  by  purchaser  of 653 

present  interest  sold  together  with 211 

Sales  of  Reversions  Act  as  to  212 

TIME  {q.  V. )  in  relation  to  sales  of 517,  520 

REVERSIONER : 

covenants,  when  entitled  to  enforce 74 

party  to  suit 74 

REVIVOR : 

by  vendor 92 

REVOCABLE  CONTRACT: 

performance  not  decreed  of 38  n. 

REVOCATION: 

authority  of  auctioneek  {q.  v.)  or  other  agent  (q.  v.),  of 264 

death  of  principal  by 265 

notice  of 265 

ROADS : 

contract  to  make 173 

ROMAN  LAW: 

damages  only  given  by 3 

mistake,  as  to    385 

no  specific  performance  in ... , 3,    6 

novatio 496 

pollicitatio 133  n. 

real  contract  in 282 

rescission  for  inadequacy  of  consideration,  as  to 210 

sale  at  price  to  be  fixed  by  third  person,  as  to 164 

spes  snccessionis 677  n. 

RULES  OF  COURT : 

admission , 615,  634 

allegation  of  facts 631 

alternative  claims 79 

relief   1 48 

■     amendment 48 

cestui  que  trust  of  real  estate  devised 88 

contract,  admission  of 275 

allegation  of 273 

alternative 273 

contract,  denial  of 243 

implied  273 

default  in  pleading '. . .  243 

demurrer 243 


'784  INDEX. 

RULES  OF  COJJRT—Chntinued.  page. 

denial 616 

inquiries    624 

misjoinder 71,  113  n. 

PARTIES  {q.  v.), 79,  80,  440 

representatives  made  parties 275 

Statute  of  Frauds  (q.  v.) 243 

transfer  of  actions 538 

{And  see  Judicature  Acts,  1873  and  1875,  Pleading. ) 
SALE: 

allotment,  of 184 

annuity,  of,  after  death  of  annuitant 444 

by  the  court,  conditions  in 567,  563 

opening  biddings  after 445 

reversions,  of 653 

time  at  which  purchase  is  comj^lete  on 445 

confirmation  of  653 

contract  for  lease,  of 170  n. 

distinct  lots,  in 401 

floating  cargo,  of 444 

going  concern,  of 518 

goods,  of 159 

when  not  in  possession  of  vendor 481 

improper,  of  trust  property 190 

improvident 190 

injunction  restraining 547 

mortgagee 161 

one  lot,  in 899 

owners,  by  161 

pretended  right,  of 481 

proprietor,  by  direction  of 161 

public  house,  of 518 

purchaser's  lieu,  in  enforcement  of  662 

railway,  of 558 

reservation  of  right  to  bid  at 349 

reserved  price,  subject  to 349 

share  in  partnership  business,  of 179,  184 

SHARES  (q.  v.),  of 664 

ship  and  freight,  of 400 

stock  in  public  house 517 

stranded  ship,  of 444 

such  interest  as  vendor  has,  of 611 

trustee  for 129 

vendor's  lien,  in  enforcement  of 558 

share  and  interest,  of 611 

whole  interest,  of 169 

with  all  faults 335,  344,  424 

without  reserve 347 

SALE  OF  LAND  BY  AUCTION  ACT,  1867: 

section  4 5,  151 

section  7 446 


INDEX.  785 

PAGX. 

SALE  OF  REVERSIONS  ACT 212,  213 

SCOTCH  LAW, 

building  contracts  enforced  by 41 

jua  qmasitam  tertio  recognized  by 82  n. 

SECRET : 

guarantee 189 

medicine 35,  682 

purchase 96 

trust 96 

SEPARATE  ESTATE 125,   129 

{And  see  Married  Woman.) 
SEPARATION: 

breach  of  covenant  in  deed  of,  restrained 48 

trifling 470 

contract  for  future,  unenforceable 688 

present,  enforceable 688 

effect  of  the  act,  36  Vict.,  c.  12,  upon  contracts  for 690 

essentials  of  vaUd  contract  for 688 

execution  of  deed  of 46,  688 

good  consideration  in  contract  for 689 

provisions  as  to  care  of  children  in  contracts  for 690 

simple  contract  between  husband  and  wife  for 689 

usual  clauses  in  deed  of 689 

SEQUESTRATION: 

enforcement  of  order  by  • 556 

SERVICE : 

contract  for 48,  44,  201,  416 

(And  see  Hiring  and  Service.) 
SET-OFF : 

of  amount  of  deterioration  against  interest 97,  646 

SETTING  ASIDE 492,  507 

(See  Rescission. ) 
SETTLEMENT : 

contract  to  make ; 64 

SHARES: 

action  by  vendor  against  purchaser 28 

agent's  fraud  in  procuring 355 

allotment  of,  after  withdrawal  of  application 140 

call  made  on,  before  contract 673 

calls,  contract  to  accept,  in  payment  of 479 

company,  action  by,  against  person  taking 28 

contract  to  sell 27 

conversion  of  loan-notes  into 519 

direction  to  execute  transfer  of 664 

election  to  rescind  contract  to  take 353 

forfeiture  of 519 

form  of  judgment  in  action  on  contract  for  sale  of  — 664 

FRAUD  {q.  V.),  in  inducing  contract  to  take   354 

3   50 


786  INDEX. 

SB.AB.es— C(^niimi«d.  pa«. 

further  assurance  of 460' 

indemnity  against  loss  from  contract  to  take 355,  671,  672,  673,  675' 

in  respect  of  calls  on 664 

inquiry  as  to  title  {g.  v.)  to 610,  672' 

intermediate  parties  to  sale  and  purchase  of 671 

MISREPRESENTATION  {q.  t\)  inducing  purchase  of 323^ 

new  contract  arising  out  of  sale  of 668,  670,  672 

assented  to,  where 672 

non-registration  of  transfer  of 671 

objections  to  name  of  ultimate  purchaser  of 665,  669 

original  purchaser  of : 

his  liability 669,  671,  672 

how  discharged 669,  670  ■ 

nominee  of,  need  not  be  a  subvendee 669 

not  a  guarantor  of  subvendees'  contracts 668 

plaintiff  only  equitably  entitled  to 673 

proposal  to  take  allotment  of 135 

prospectus,  purchased  upon  faith  of 323 

recovery-back  of  price  of 673 

rectification  of  register  of 542 

registered  in  third  person's  name 673 

registration  of  transfer  of 664,  665,  668 

guaranteed 671 

purchaser's  duty  to  procure 673,  676 

refused  by  directors 673,  676 

vendor's  obligation  as  to 673 

winding-up  intervening  before 675 

rescission  of  contract  to  take 354 

Stock  Exchange  {q.  v.),  sold  on  the 665 

subvendees  of 668,  669,  671 

third  person  adopting  contract  for  purchase  of 672 

ultimate  purchaser  of 665 

must  be  capable  of  contracting 669 

unobjectionable 669 

must  have  authorized  original  purchaser  to  bind  him 669 

time  for  objecting  to  name  of 665,  668,  669 

winding-up,  contracted  for  after 444 

before     450,  671,  675 

withdrawal  of  application  for 140- 

SHIP: 

alteration  of,  contract  for 405' 

charter,  under 414 

contract  relating  to  proceeds  of  sale  of 686 

equities  enforceable  against  owner  and  mortgagee  of 683,  686 

executory  contract  to  transfer 686 

foreign    687 

freight  sold  with 40O 

injunction  against  removing 50 

legislation  affecting  contracts  as  to 683,  686 


INDEX.  787 

SHIP — Continued.  page. 

persons  qualified  to  be  owners 684 

registration  of  ownership  of 683,  684 

trust  of 683 

who  may  sue  on  contract  relating  to 684 

within  the  principle  applied  to  unique  articles 28 

SIDING: 

contract  relating  to 42,  290,  409 

SIGNATURE : 

actual  writing  of  name,  or  equivalent  act,  by 254,  256 

affictevit,  in 253 

AGENT  {q.  V.),  by 257,  258  n.,  265  n. 

articles  of  association,  of 257 

authentication  of  entire  instrument  by 253,  256 

auctioneer 263  n. 

beginning  of  letter,  where  name  written  at 253 

concluded  contract  at  time  of  248 

different  intent,  with 254 

events  subsequent  to 446 

incidental  introduction  of  name,  by 255 

initials,  by 254,  296 

intent  to  sign,  how  it  affects 254 

mark  of  marksman,  by  254 

minute-book,  in 256 

one  party,  by 143,  218,  252 

paper  referred  to  for 267 

pencil,  in 254 

printed  name  regarded  as 254 

stamp,  by 254 

subscription  distinguished  from 25S 

suggestion  as  to  the  true  principle  with  regard  to 257 

telegram,  in 254 

witness,  as 254 

SILENCE : 

FRAUD  {q.  c),  generally  is  not 317,  338,  343 

may  be 341 

hardship,  amounting  to 188 

lessee  of 346 

misrepresentation,  generally  does  not  amount  to 316 

mine,  as  to  existence  of 343 

mortgagee  of 344 

purchaser,  of 341 

unfair 346 

vendor,  of 317,  338 

SLAVES : 

contracts  in  regard  to  sale  of 29  n. 

SOLICITOR : 

approval  of  title  by,  condition  for 248 

biddings  by 187 


788  INDEX. 

SOLICITOB— Continued.  page. 

eale  of  business  of • •  •  •     36 

Statute  of  Frauds  (q.  v.),  not  agent  within 264 

SPECIAL  CASE : 

stated  in  action 539 

title,  as  to  question  of ^40 

SPECIFIC  PERFORMANCE : 

agent  alone  defendant  to  action  for 118 

approaches  to,  at  common  law 3 

bill  of  complaint,  formerly  sought  by 538 

bond  given  before  marriage,  of  contract  evidenced  by 19 

charter  party,  of 28 

COMMON  LAW  (q.  V.)  remedy,  where  : 

adequate 23 

inadequate 22 

lost  by  default  of  plaintiff 15 

unavailable 16)  19 

wanting 15 

COMPROMISE  (q.  v.),  of , 16 

convey  by  a  particular  day,  of  contract  to 18 

covenant  for  further  assurance,  of 479 

defined 

distinguished  from  cases  of  constructive  trust 9 

delivery  of  chattel  in  specie 9 

performance  of  trust 9 

specific  relief 10 

ecclesiastical  courts,  former  jurisdiction  of ,  in 6 

farming  lease,  of  covenants  in 35 

foreign  government,  against 48 

former  practice  of  sending  parties  to  law,  in  connection  with 20 

heir,  decreed  against 18 

incomplete  gifts,  of,  not  enforced  203 

INJUNCTION  (g.  V. ),  enforced  by 544 

jealousy  of  common  law  courts  as  to 8 

JURISDICTION  {q.  V.)  in  : 

defendant  not  within  the  jurisdiction,  against 50 

discretionary 10 

earliest  trace  of ' 

extraordinary 9 

leaseholds,  of  contract  to  advance  on  security  of 18 

Lord  Tliurlow  on  the  doctrine  of 15,  572 

money,  of  agreement  to  lend  or  pay 17 

mortgage,  of  contract  to  execute 17 

not  a  matter  of  right 10  «-.,  23  7i. 

'      origin  of  the  jurisdiction  in 7 

particular  covenant,  of  407 

peculiar  to  English  jurisprudence 2 

piecemeal 399,  408 

pre-emption,  of  right  of 16 

promptly  sought,  must  be 527 


INDEX.  789 

SPECIFIC  PERFORMANCE— Con/m««(i.  pash. 

real  estate 13  «, 

repairs 40  n. 

rules  as  to 11  n.,  12  n. 

secret  guarantee,  of 18& 

suhpmna  in  relation  to 7 

trustee  in  bankruptcy',  against 106 

where  court  ■will  interfere  in 67  n.,  68  n.,     13 

will  not  interfere  in 13 

{And  see  Peiformance.) 
STAKEHOLDER : 

absconding 658 

deposit,  liable  to  make  good 119 

threatening  to  pay  over 119 

when  a  party 119 

not  agent  of  vendor 120 

STATION: 

breach  of  contract  to  erect 603 

STATUTE: 

jurisdiction  taken  away  by 48 

STATUTE  OF  FRAUDS : 

acceptance  in  writing,  where  and  where  not  necessary  to  satisfy 143 

of  goods  under  seventeenth  section  of 287 

admission  in  pleadings  an  exception  to 274 

ante-uuptual  agreement 280  n. 

benefit  of,  how  claimed 243 

case  taken  out  of,  by  admission 275 

fraud 275,  279 

mistake 388 

part-performance 273,  281 

sale  by  the  court 273 

contract  within,  how  pleaded  272 

how  to  make  a,  binding  under 240  n. 

all  terms  of,  must  be  assented  to 252  n, 

where  parol 266  n. 

defense  of : 

answer,  by 242 

demurrer,  by 242,  243 

plea  alone,  by 242 

plea  and  answer,  by 242 

present  practice,  under 243,  244 

defendant's  situation  not  affected  by 276  n.,  361 

enacted  in  many  states 241  n. 

foreign  contracts  affected  by 340 

formal  contract  intended,  where 249 

formality  not  required  by 245 

fourth  section  of,  affects  not  the  contract,  but  the  right  to  sue 240 

quoted 240 

refers  not  to  the  solemnities,  but  to  the  procedure 240 

FRAUD  (q.  V.)  an  exception  to 275 


790  INDEX. 

STATUTE  OF  FR ^.rDS—Contiymsd.  pags. 

improvements  on  real  estate  by  vendee 289  n. 

implied  trust 27C  n. 

marriage,  Tvhere  written  memorandum  of  contract  after 271 

marriage  contracts  are  within 280,  298,  29b'  n, 

memorandum  within,  must  be  evidence  of  concluded  contract 245 

leave  nothing  open 244 

mere  agreement  to  lend  or  pay  money,  does  not  apply  to 17,  388 

MISTAKE  (q.  V.)  an  exception  to 362 

nature  of  document  immaterial  with  regard  to 245 

not  a  mere  i"ule  of  evidence 241  n. 

object  of .- 244 

one  paper,  does  not  require  contract  to  be  contained  in 266 

PAKT-PAYMENT 296  7?. 

PART-PERFORMANCE  (q.  V  )  an  exception  to 281,  281  n.,  et  seq. 

marriage  as 299  n. 

plea  of 3^6 

pleadings  in  action  272  n. 

RATIFICATION  (q.  V.)  taking  contract  out  of 259 

sale  by  the  court  an  exception  to 273 

public  auction  does  not  take  case  out  of 274 

satisfied,  how 244 

siGNATrRE  ig.  v.),  what  required  by 131,  218,  253 

subsequent  parol  contract,  a  bar  to  performance  of 386 

treaty,  in  regard  to 249 

weapon  of  defense,  a • 255 

where  possession  has  been  taken • 289  n. 

wills,  as  to 281 

writing,  what  it  must  contain,  to  satisfy 244  n.,  245  n. 

(And  see  Incompleteness.) 

STATUTE  OF  LIMITATIONS: 

interest,  as  to ^58 

STATUTES: 

Appellate  Jurisdiction  Act,  1876  (39  and  40  Vict.,  c.  59),  s.  17 555  n. 

Bankrupt  Law  Consolidation  Act,  1849(12  and  13  Vict.,  c.  106),  s.  146,  464 

Bankruptcy  Act,  1869  (32  and  33  Vict.,  c.  71),  s.  23 464 

Bill  of  Bracery  and  Buying  of  Titles  (32  Hen.  VIII,  c.  9) 99,  481 

Chancery  Procedure  Act,  1852  (15  and  16  Vict.,  c.  86),  s.  42 SS  n. 

Chancery  Procedure  Act,  1853  (15  an.d  16  Vict.,  c.  86),  s.  49. . . .  71,  113  n. 
Common  Law  Procedure  Act,  1854  (17  and  18  Vict.,  c.  124),  s.  11. . . .  700 

Common  Law  Procedure  Act,  1854  (17  and  18  Vict.,  c  124),  s.  12 164 

Common  Law  Procedure  Act,  1854  (17  and  18  Vict.,  c,  124),  ss.  79,  81,  82,  551 

Companies  Act,  1862  (25  and  26  Vict.,  c.  89),  s.  35 542 

Companies  Act,  1862  (25  and  26  Vict.,  c.  89),  ss.  131,  153 676 

Companies  Act,  1867  (30  and  31  Vict.,  c  131),  s.  37 310 

Companies  Act,  1867  (30  and  31  Vict.,  c.  131),  s.  38 342 

Companies  Clauses  Consolidation  Act,  1845  (8  and  9  Vict.,  c.  16),  6.  97,  309 

County  Courts  Act,  1865  (28  and  29  Vict. ,  c  99,,  s.  1 539 

County  Courts  Act,  1865  (28  and  29  Vict.,  c.  99\  ss.  3,  8,  9,  10,  11, 
18,  19 -^40 


IJTDEX.  791 

'.STATUTES— Con^mw^d.  page. 

County  Courts  Act,  1867  (30  and  31  Vict.,  c.  145),  ss.  1,  8.  9 540 

Custody  of  Infants  Act,  1873  (36  Vict.,  c.  12),  s.  2 690 

Debtors'  Act,  1869  (32  and  33  Vict.,  c.  62),  s.  6 553 

Debtors'  Act.  1869  (32  and  33  Vict.,  c.  62),  s.  8  557  n. 

Fines  and  Recoveries  Abolition  Act  (3  and  4  "Will.  I  J',  c  74) 48 

Further  Encouragement  of  British  Mariners  [1794]  (34  Geo.  Ill,  c 

68),  s.  14 685 

Further  Increase  and  Encouragement  of  shipping  and  Navigation 

[1876  (25  Geo.  Ill,  c.  60),  8.  17^  685 

Grantees  of  Reversions  (32  Hen.  VIII,  c.  34) 74 

Judicature  Act,  1873  (36  and  37  Vict. ,  c.  66),  s.  16 601 

Judicature  Act,  1873  (36  and  37  Vict.,  c.  66),  s.  24  (5) 550,  555  n. 

Judicature  Act,  1873  (36  and  37  Vict.,  c.  66),  s.  24  (7),  395.  555  n.,  601,  694 

Judicature  Act,  1873  (36  and  37  Vict.,  c.  66).  s.  24  (8) 551 

Judicature  Act.  1873  (36  and  37  Vict.,  c.  66),  s.  25  (7) 511 

Judicature  Act,  1873  (36  and  37  Vict.,  c.  66),  ss.  33,  34 538 

Judicature  Act,  1873  (36  and  37  Vict.,  c.  60),  ss.  45,  90 540 

Judicature  Act,  1873  (36  and  37  Vict.,  c.  66),  s.  76 ". 555  n.,  601 

Judicature  Act,  1875  (88  and  39  Vict.,  c.  77),  s.  10 511 

Judicature  Act,  1875  (38  and  39  Vic. ,  c.  77),  s.  11 538 

Lands  Clauses  Consolidation  Act,  1845  (8  and  9  Vict.,  c.  18). .  47,  51, 

53,  157,  652 

Land  Transfer  Act,'  1875  (38  and  39  Vict.,  c.  87).  s.  93 81,  87,  541 

Land  Transfer  Act.  1875  (38  and  39  Vict.,  c.  87),  s.  94 541 

Lord  Cairns'  Act  (21  and  22  Vict.,  c.  27),  s.  2 41,  156,  411,  599  et  seq- 

Lunacy  Regulation  Act,  1853  (16  and  17  Vict.,  c.  70),  s.  122 130 

Married  Women's  Proi>erty  Act,  1870  (33  and  34  Vict.,  c.  93),  s.  11,  127  n. 

Merchant  Shipping  Act,  1854  (17  and  18  Vict.,  c.  104),  s.  18 686 

Merchant  Shipping  Act,  1854  (17  and  18  Vict.,  c.  104),  ss.  55-57,  683,  686 
Merchant  shipping  Amendment  Act,    1855  (18  and  19  Vict.,  c.  91), 

s.  11  683 

Merchant  Shipping  Amendment  Act,  1862  (25  and  26  Vict.,  c.  63), 

s.  3 683,  686 

Promissory  Oaths  Act,  1868  (31  and  32  Vict.,  c.  72),  s.  14  (8) 684  n: 

Registering  of  British  Vessels  [1825]  (6  Geo.  IV,  c.  110,  s.  31) 685 

Registering  of  British  Vessels  [1833]  (3  and  4  Will.  IV,  c.  55),  s.  31. . .  685 
Registering  of  British  Vessels  [1845]  (8  and  9  Vict.,  c.  89),  ss.  34,  37. .  685 

Registering  of  Vessels  [1823]  (4  Geo.  IV,  c.  41),  s.  29 685 

Sale  of  Land  by  Auction  Act,  1867  (30  and  31  Vict  ,  c.  48),  ss.  4-6. . .  349 

Sale  of  Land  by  Auction  Act,  1867  (30  and  31  Vict.,  c.  48).  s.  7 446 

Sales  of  Reversions  Act  (81  Vict. ,  c.  4) 212 

Sir  George  Turner's  Act  (13  and  14  Vict.,  c.  35) 440  «. 

Statute  of  Frauds  (29  Cha.  II,  c.  8).  ss.  4,  17 143,  240 

Statute  of  Limitations  (3  and  4  Will.  IV,  c.  27),  s.  42 658 

Trade  Union  Act,  1871  (84  and  35  Vict.,  c.  31) 230 

Trustee  Act,  1850  (13  and  14  Vict.,  c.  60),  ss.  3,  4 130 

Trustee  Act,  1860  (13  and  14  Vict.,  c.  60),  8.  7 90 

Trustee  Act,  18.50  (13  and  14  Vict.,  c.  60),  s.  30 90,  559/1. 

Trustee  Extension  Act,  1852  (15  and  16  Vict.,  c.  55),  ss.  10,  11 130 


792  INDEX. 

STATUTES— Continued.  r^e,. 

Vendor  and  Purchaser  Act,  1874  (37  and  38  Vict.,  c  78),  s.  2 

170,  560,  614,  620 
Vendor  and  Purchaser  Act,  1874  (37  and  38  Vict.,  c.  78),  s.  9. . . .  539,  627 

STAY  OF  EXECUTION 31  n. 

STAY  OF  PPtOCEEDINGS 550,  556,  694,  700 

STEWARD  : 

made  a  party 68 

STOCK : 

government 26 

life-interest  in,  contract  to  sell 26 

Neapolitan 26 

purchase  of,  contract  for 19 

South  Sea 26 

transfer  of,  contract  for 13  n.,  26,  27  n.,  27 

York  Bijilding 27 

STOCK  EXCHANGE : 

account  (or  settling)  day  on  the 665- 

brokers  on  the 665 

contracts  on  the : 

for  cash 665 

for  the  account 665 

customs  of  the 664 

jobbers  on  the 665 

MISREPRESENTATION  (q.  V.),  to  the  secretary  of  the 623 

name  day  on  the 72,  665 

novation  in  sales  on  the 72,  668 

peculiarity  of  contracts  on  the 668 

registration  of  transfer  of  shares  sold  on  the 674,  676 

statement  of  the  practice  on  the 665 

(And  see  SJiares.) 
STRANGER: 

agency,  in  cases  of 83^ 

assignee  under  insolvency 77 

cestui  que  trust  of  contractor 83 

change  of  condition  in  life,  "where 85 

claiming  adversely  to  contractors 77 

claiming  benefit  resulting  from  the  contract 86 

conscience  of,  affected  by  notice 87 

executed  contracts,  in  cases  of 84 

FRAUD  (q.  V.)  by 350 

generally  cannot  be  sued  for  performance 86 

sue  for  performance 82 

Land  Transfer  Act,  1875,  as  to 87 

marriage  contract,  pei'son  claiming  under 84 

near  relationship,  in  cases  of 84 

person  in  actual  possession  affected  by  relief  claimed 87 

possessed  of  subject-matter  of  contract  with  notice 86 

representations  by 158 


INDEX. 


793 


STRA.^GER— Continued.  p^eB. 

Scotch  law  as  to ^•^ 

solicitor °* 

sued  for  performance 86,     87 

suing  for  performance ^~>     ^^ 

taking  benefit  under  contract 82 

SUBJECT-MATTER : 

ascertainable,  though  not  ascertained 159 

connected  with  claim,  must  be 159 

daily  variation,  exposed  to 517,  518 

DESCRIPTION  {q.  V.)  of 1" 

different  contracts  relating  to  same 1 '  ~ 

ELECTION  ('-I-  v.),  ascertained  by 160 

event  prior  to  contract,  destroyed  by 443 

materially  affected  by '^'^^ 

subsequent  to  contract,  destroyed  by *  446,  675 

extrinsic  evidence  {q.  v.)  as  to 157 

lapse  of  time,  extinguished  by 450 

misstatement  of '^^^ 

non-existent  at  date  of  contract  18o 

not  originally  within  the  jurisdiction 48 

question  as  to  existence  of,  precluded  by  contract 445 

TIME  (q.  V.)  essential  from  nature  of 518  n. ,  519 

UNCERTAINTY  (5.  f.)  aS  tO 185^ 

SUBMISSION 696,  697 

{See  A'tcard.) 
SUB-MORTGAGEE: 

plaintiff ^5' 

SUBPCENA ; 

remedy  by ' 

SUB-PURCHASER : 


lien  of. 


83  n. 


660^ 

suit  by ' 

SUBSCRIBER: 

action  against 

to  the  erection  of  public  buildings 61 1 

SUBSEQUENT  EVENTS: 

when  a  ground  for  resisting  performance 446,  448 

when  not  a  ground  for  resisting  performance 448 

SUCCESSION : 

contract  concerning  hope  of 16-  ^77 

(And  see  Expectancy  ) 
SUGGESTIO  FALSI 338,  345 


SUPPLEMENTAL: 


bill 


69.3 
601 


decree  

SUPPRESSIO  VERI 338 

renewal  of  lease,  in  obtaining 188 


794  INDEX. 

SURPRISE:  P^"- 

where  there  are  circumstances  of 187 

SURRENDER: 

contract  to  procure ^''^ 

TELEGRAM: 

contract  made  by 1'*^  "■• 

TENANCY: 

contract  for  j'earlj' ** 

misrepresentation  as  to ^°^ 

substituted    ^^' 

TENANT  FOR  LIFE: 

compensation,  decreed  to  maliC 584 

contract  by,  for  sale  of  fee ^88 

excess  of  power,  contracting  for  lease  in 589 

leasing  power,  contracting  under 216 

Lord  Redesdale  on  contracts  by 219 

mining  lease,  decreed  to  execute  contract  for 200 

mistake  of 366 

remainderman,  contracting  prejudicially  to 189,  219,  588 

reversioner,  concurring  with 211 

trustee,  purchasing  from 639  n. 

TENANT  IN  COMMON: 

in  tail,  contract  for  sale  by 483,  656  n. 

possession  as,  with  vendor "5o 

TENANT  IN  TAIL: 

disposition  of  land  by '^8,     to 

issue  in  tail  not  bound  by  contract  of 483 

tenant  for  life's  contract,  cannot  enforce 215 

(A7id  see  Mutuality,  Remainderman.) 

TENDER 474  n. ,  507  n. ,  536  n. 

by  payment  into  court 658  7i. 

waiver  of ""'I  ^^* 

TENURE: 

ascertainment  of 1"*^ 

compensation  for  difference  of 579,  580 

TERM: 

IMPLIED  (q.V.) 169,  171,  455 

supplied,  by  construction,  expression,  or  inference 171 

years,  of,  commencement  of 171 

(And  see  Lease,  Performance.) 
THEATRE : 

contract  to  let  box  in 1^^ 

perform  at 41~/ 

TIMBER: 

future  time,  to  be  cut  down  at 410 

injunction  against  cutting 546 

installments,  to  be  paid  for  by 410 

purchase  of,  contract  for 19 

supply  of  particular,  contract  for 33 


INDEX.  '795 

TIME:  PA«B. 

abstract,  for  delivery  of 516,  643 

allowed  for  completion  of  title 626 

annuities  on  lives,  in  contract  for  granting 517 

chapter,  in  purchase  by 521 

coal,  in  contract  for  supply  of 516 

commercial  enterprise,  where  object  of  contract  is 518 

common  law,  at 510,  515  n. 

COMPLETION  [q.  v.),  Specified  for 513  n.,  516,  637 

condition  as  to,  must  be  clear 516 

contract  substantially  executed,  where 530 

crossings,  for  directing  the  making  of 528 

daily  variation,  where  subject-matter  is  exposed  to 517 

delivery  of  objectioiFs,  for 584,  565 

deposit,  for  payment  of 514 

election  between  payment  into  court  and  giving  up  possession,  for. . .  654 

to  rescind,  for  exercise  of 353 

equitable  title,  where  plaintiff  is  relying  on 530 

equity,  how  regarded  in 510,  515  n.,  512 

essentiality  of 510^ 

conditions,  by  the 51S,  576 

implied 517 

intention  of  the  parties,  by - 516 

original 512 

some  of  the  conditions,  as  to 521 

subject-matter,  from  nature  of 517,  519 

surrounding  circumstances,  from 521 

waived 5oo,  ooo 

without  delay,  to  be  insisted  on 512 

express  condition  as  to 514 

extension  or  giving  of 535,  5o6  n . 

going  concern,  in  contract  relating  to 518 

government  stock,  on  purchases  of 517 

hardship  resulting  from  disregard  of 521 

Judicature  Act,  1873,  as  to 511 

laches,  in  relation  to = 5-4 

lapse  of,  a  defense 510,  531  n. 

letters-patent,  in  contract  relating  to 518 

mere  claim  or  protest,  in  cases  of      533 

mills,  where  land  purchased  for  erection  of 518 

MINES  (g.  ■».),  in  contracts  relating  to 518 

negotiation,  pending 531 

no  general  right  to  limit 5,v 

non-essential 516,  o<,0 

not  designated ^""^  ^■ 

not  allowed  for  completion  of  thle 626 

notice  limiting 5^^'  ^'~ 

parol ^-* 

previous  refusal  to  remove  objection,  after  523 

reasonableness  of 519,  522,  523 


796 


INDEX. 


TIME — Continued.  pagb. 

unequivocal 504 

unreasonable 522 

option  in  contract  giving 519,  520,  537  ra.,  528 

part-performance,  in  cases  of 294 

payment  for    ,534 

possession,  after  default  as  to  taking 535 

where  stipulation  for  taking 519 

wliere  tenant  is  in 530 

possibility  of  postponement  contemplated,  where 520 

prima  facie  non-essential 510 

public-house,  in  contract  relating  to 518 

purchase-money,  for  payment  of 516 

Railway  Act,  where  land  taken  under 533 

reasonable,  performance  within 510 

reference-back  of  certificate,  in  cases  of 629 

renewal,  in  respect  of  covenants  for 514 

requisitions,  for  sending  in 521 

reversionary  interests,  in  sales  of 517,  520 

right  to  rescind,  for  exercise  of 503 

shares,  in  contracts  relating  to 519 

stipulation  as  to 513  n. 

waiver  of 533 

distinguished  from  waiver  of  act 585 

where  it  does  not  run 530 

works,  in  contracts  relating  to 518 

(And  see  Delay  ) 
TITHE; 

compensation  for 574^  592,  599 

contract  for  sale  of 577 

estate  sold  as  free  from 574,  577,  599 

TITLE : 

acceptance  of,  worked  by  acts  op  ownership  (5  v) 618 

accepted  under  common  mistake 612 

need  not  be  if  doubtful 432  n.,  439  n. 

accordance  with  conditions,  in 614 

acquired  subsequently  to  the  sale 627 

acts  of  purchaser  before  knowledge  of  objection  to 616,  618 

with  knowledge  of  curable  objection  to 616 

incurable  objection  to 616 

administrator's  sale  at 45I  n, 

admission  of 615,  653 

CERTIFICATE  (q.  v.)  agaiust  or  for 028 

claim  for  compensation  {q.  v.)  involving  objection  to 596 

costs,  purchaser  ordered  to  pay,  after  decision  in  favor 439 

crown  grant,  cured  by. 626 

cured  by  purchaser's  own  act 621 

dealing  about,  after  day  for  completion    533 

decision  of  inferior  or  other  court  as  to 430 

defense,  inability  to  obtain  a  good  title  a 440  ?i. 


INDEX.  797 

TITLE— Continued.  p^ge 

defect  of,  discovered  by  purchaser  aliunde G14 

disclosed  bj'  vendor  himself 614 

delay  in  accepting 527 

different  subject-matter  from  that  contracted  for,  relating  to 421 

dismissal  of  action  at  the  trial  for  want  of 437,  609 

doubtful,  amount  of  doubt  required  by  the  rule  as  to 430 

arguments  for  and  against  the  rule  as  to 429 

former  and  present  tendencies  of  the  court  in  cases  of 430 

nature  of  the  doubt  in  cases  of 432 

origin  of  the  rule  as  to 428 

where  court  would  consider  title  to  be 432 

not  to  be 435 

dower,  right  of,  an  incumbrance 432 

good 560,  630 

good  holding 615 

implied  condition  for 170,  611 

inquiry  as  to 609,  672 

into,  excluded GIO,  613 

limited 613,  625 

precluded 618 

iron  works,  to  share  in 617 

legal  right  of  purchaser  as  to 560 

lessor  of 170,  012,  614 

making  and  showing,  distinction  between 632 

marketable 430 

matters  connected  with 624 

of 632 

MISREPRESENTATION  {q.  V  )  aS  tO 331 

misstatement  not  amounting  to  an  objection  to 595 

necessarj^  pa-rty  to,  not  under  vendor's  control 631 

new 626 

obligation  to  disclose 343 

old  practice  of  court  of  chancery  in  disputes  as  to 428 

particular  objection  to 616 

pleading  facts  constituting    615 

possibility  of  fraud  in  extrinsic  facts,  where  there  is 435 

presumption,  depending  on 432 

questions  of,  are  mixed  questions  of  law  and  fact 331 

defects  in  subject-matter  are  not 421 

defined 623 

distinguished  from  questions  of  conveyance 630,  631 

evidence 632 

right  to  rescind  for 503 

REFERENCE  OF  (q.  V.) 609 

restrictive  stipulations  as  to , 611 

shares,  to ' 610,  672 

special  case  on  question  of 440 

suspicious  circumstances,  in  cases  of 435 

time  for  completion  of,  when  and  when  not  allowed 626 


798  INDEX. 

TITLE— Co7itinued.  rxat. 

validity  of  purchase  by  solicitor  from  client,  depending  on 435 

Vendor  x^d  Purchaser  Act,  1874  {q  v.),  under  170,  560 

vendor  showing  no 502 

vendor's  obliijation  to  show 170  n.,  634 

voluntary  settlement,  depending  on  invalidity  of 432 

want  of  good 427  n.,  UO  n. 

WAi\'ER  (7.  r.)  of 170 

will,  depending  on  validity  of 439 

TITLE  DEEDS: 

deposit  of,  as  indemnity  18 

{Ajid  see  Deed  ) 
TRADE : 

covenant  not  to  carry  on 58 

unions 280 

TRADE  UNION  ACT,  1871 230 

TRANSFER : 

of  SHARES  {q.  V.) 664 

of  SHIP  (q.  V.) 683 

TRANSFER  OF  ACTION: 

chancery  division,  to 538 

counterclaim,  upon 538 

COUNTY  COURTS  (q.  'V.),  to  aud  from 540 

TREATY 131,  136.  249 

{See  Xegotiaiion.) 

TRUST : 

chattels,  respecting 34 

contract,  contrasted  with 9 

created  under  contract 404  n, 

designed  to  give  effect  to  unenforceable  contract 228 

equity  will  enforce  a  parol  279  n. 

performance  of,  distinguished  from  specific  performance 9 

raised  on  property  devised  or  bequeathed 281 

secret 98 

TRUSTEE: 

BANKRUPTCY  [q.  V.)  iu,  enforcement  of  specific  performance  against.  . 

106,  464 

cest'ii  que  trust,  sued  for  performance  by ' 218 

contract  by,  amounting  to  breach  of  trust  {q.  r.) 190 

in  excess  of  power 190 

covenants  by 463,  464 

disclaimer  by 464 

entering  into  contract  ultra  vires 190 

illegality  {q.  V.)  of  trust,  setting  up 229 

improvident  sale  by ' 190 

incapable  of  contracting  with  cestuis  que  trust 180 

injurious  contracts  by,  generally  not  enforced 191 

insolvent  lessee,  for 96 

liquidation,  in 106,  464 


INDEX.  799' 

TWUSTEE— Continued.  pase. 

man  of  straw 671 

married  woman 1-9)  215 

misrepresenting  value  of  property  sold 191 

{Arid  see  Misrepresentation.) 

party  to  action,  when 76 

purchaser  constructively  a    634 

real  purchaser,  for 278 

sale,  for- •••••  120,  161,  191 

secret 96,  97 

separate  estate,  of •  -  •  127 

unbusinesslike  contract  by 192 

vendor  constructively  a 634,  646 

is  after  payment  of  purchase-money 659 

TRUSTEE  ACT,  1850: 

party  to  action  declared  trustee  by  virtue  of 90 

vesting  order  under .    90,  559 

ULTRA  VIRES: 

acquiescence  in  act  which  is 235 

agents  of  corporations,  in  acts  of 235 

COMPANY  {q.  V.)  and  stranger,  where  question  between 236 

where  contract  is 233  n . 

CORPORATION  (q.  V.),  in  contracts  by 232 

covenant  for  renewal,  in 190 

directors  and  members  of  company,  where  question  between 237 

promoters,  in  cases  of  contracts  by HO 

purchase  of  assurance  company's  business  held  void  as 383 

ratification  of  act  which  is •  ■  •  235 

UNCERTAINTY : 

AWARD  (g.  v.),  of 698 

compromise  rendered  fair  by 183 

contingency,  where  contract  involves  184,  185 

DESCRIPTION  (5.  V.)  of  subject-matter,  in 159,  424 

ELECTION  (q.  v.),  removed  by •  •  160 

FRAUD  {q.  v.),  in  cases  of 180 

instances 1^''^ 

marriage  articles,  of l"*"^ 

mining  contract,  of 185 

reduced  to  certainty  (q.  v.) 159 

removed  by  user  and  course  of  dealing 176 

stibject-matter  iq.  v.)  asio 185 

terms  of  contract 173  ??. 

theatrical  engagement,  in 177 

UNDERLEASE: 

contract  for •. 170 

duration  of,  not  specified 172 

sold  as  lease 580,  582 

UNDERTAKING: 

contract  in  nature  of 217 


800  INDEX. 

#AGE. 

UNDERVALUATION 210 

(And  see  Value?'.) 
UNDERWRITER'S  SLIP: 

does  not  constitute  a  contract 377 

UNFAIRNESS  : 

BREACH  OF  TRUST  (q.  v.).  of  Contract  necessitating 190 

cestui  que  trust,  to    191 

extrinsic  matters,  in 182 

intentional,  need  not  be 188 

intoxication,  in  cases  of 188 

misstatements,  arising  from 188 

{See  Misrepresentation.) 
particulars,  in 561 

SILENCE  {q.  v.),  by 188 

submission,  in  contract  for 195 

suppression  of  a  fact,  by 188 

{See  Fraud.) 

terms  of  contract  in 188 

third  persons,  to  189 

{And see  Fairness.) 

UNILATERAL  CONTRACTS: 

DELAY  {q.  V.)  in  cases  of 527 

discretion  of  court  in  cases  of 217 

MUTUALITY  (g.  v.),  excepted  from  doctrine  of 217 

UNREASONABLE   CONTRACT 196  n. 

VALUATION: 

contract  to  sell  at  a 696  n.,  699 

inaccurate    186 

incapable  of  being  acted  on 162 

incidental  matters,  of 166 

partnership,  at  expiration  of 166 

subsidiary  stipulation  for 166 

unfairness  in 183,  186 

vendor  obstructing  165,  699 

VALUER : 

arbitrator,  distinguished  from 164 

Common  Law  Procedure  Act,  1854,  not  applicable  to 164 

duty  of 186 

impropriety  on  part  of 162,  186,  698 

injunction  against  obstructing 548 

PRICE  {q.  v.),  for  ascertainment  of , 168,  699 

refusing  to  proceed 165 

under-valuation  by 210 

unfairness  of 186 

VARIANCE; 

between  land  sold  and  real  quantity 421  n. 

VARIATION: 

acquiescence  a  ground  of 372 


INDEX. 


801 


YABIA.TIO'^— Continued.  pabb. 

alleged  and  proved  contracts  between 304 

covenant  for  renewal,  of 372 

description  in  contract,  from 421,  425 

excess,  in  the  nature  of 424 

immaterial,  in  cases  of  part-performance 305 

nugatory,  in  acceptance 138 

omission  of  term  in  plaintiff's  favor,  by 305 

PAROL  iq.  V.) 308,  308 

partnership,  in  terms  of 498 

VENDEE: 

abandonment  of  contract  by 537  n. 

equitable  estate  in 633  n. 

VENDOR: 

chattel  of,  action  by 33 

commendation  by "'-' ' 

constructive  trusteeship  of., 634,  646 

enforcement  of  contract  to  extent  of  interest  of 5S6 

{ See  Compensation. ) 

obligations  of 634,  648,  673 

of  land,  damages  not  complete  remedy  to 25 

responsible  for  description  of  thing  sold 571 

right  of,  to  sue 25 

suing,  must  show  ability  to  perform  his  part 571 

VENDOR  AND  PURCHASER  ACT,   1874: 

action  brought  after  proceedings  under 539 

position  of  parties  to  application  under  539,  627 

summons  under  s.  9  of 53 J 

title  to  the  freehold,  as  to I'^O,  620 

VENDOR'S  LIEN: 

acts  diminishing  value  of 656 

declaration  of 55*\  558 

enforcement  of 55  / ,  655 

railway  companies,  against 558,  655 

results  from  non-performance  of  contract 635 

when  it  will  and  will  not  prevail 557 

{And  see  Lien.) 

VERBAL  CONTRACT 143,277,279,299,308,  372 

{See  Parol.) 

VESTING  ORDER 90,  559 

VOID: 

stipulation  that  contract  is  to  be,  in  specified  event 501 

VOLUNTARY : 


contract 


45 


settlement ^^2'     "^^ 

settlor,  contract  enforced  against 218 

not  assisted  to  override  settlement 190,  432 

willing  purchaser  from 190,  218 

51 


802  INDEX. 

VOLUNTEER :  paob. 

limitatious  in  favor  of '4*^' 

WAGER  CONTRACTS: 

unlawful 224  n..  225  n.,  230  v. 

WAIVER: 

abstract,  by  retaining 61^ 

act  of,  distinguished  from  waiver  of  time •'^3o 

acts  before  knowledge  of  objection,  by 618 

not  amounting  to 618 

ACTS  OF  OWNERSHIP  {q.  v.),hy 618 

assignment,  of  proviso  against 99 

award,  of  claims  under 698 

breaches  of  covenant,  of 469 

clear  evidence  of,  required 495 

conditions  for  benefit  of  purchaser,  of 170,  411 

precedent,  of 47  < 

conditional,  of  notice 523 

stipulation  as  to  day  of  payment 535 

conduct,  by 494,  620 

contract  not  enforced  notwithstanding,  of  right  to  investigate  title.   . .  521 

defect,  of 578 

DELAY  (g.  v.),  of 533 

essentials  of - 477 

forfeiture,  of • 534 

form  of  declaration  as  to 520  n. 

FRAUD  [q  v.),  of 349 

granting  lease,  by 616 

intention  and  knowledge  requisite  to 534 

lessor's  title,  of 620 

misdescription,  of  objection  on  the  ground  of 616 

mutual  parol  agreement,  by 494 

MUTUALITY  {q.  V.),  of  Want  of 217,  627 

objections  to  title,  of 610 

partial 495 

particular  objection  to  title,  of 616 

performance  by  plaintiff,  of 460 

personal  bar  to  relief,  of  right  to  insist  on 357 

pleaded,  how 621 

possession,  by  continuing  in 617 

by  giving 535 

by  taking 616,  617,  535 

question  of  evidence,  a 536  n.,  535 

receipt  of  rent,  by 469 

royalty  at  reduced  rate,  by 503 

subsequent  instalment,  by 503 

REFERENCE  OF  TITLE  (g.  V.),  Of  right  tO 615 

requisition,  of 6is 

right  to  rescind,  of 503 

separate  breaches,  in  cases  of 504 

silence  of  subsequent  contract,  by 619 


INDEX.  803 

WAIVER — C<mtinu6d.  paob. 

suing  on  contract,  by 349 

TIME  {q.  v.),  of 447,  533 

TITLE  (q.  v.),  oi 615 

trial,  adjudicated  on  at  the 535,  609 

voluntarily  curing  defect,  by 570 

WARRANTY : 

apparent  defects  not  included  in 332,  333  n,,  422,  580 

condition,  as  to 444 

existence  of  specified  thing,  of 478 

real  estate  conveyed  without 452 

WASTE 408 

WAY,  RIGHT  OF : 

COMPENSATION  {q.  V.),  not  a  subject  for 580 

concealment  of 331 

not  expressly  provided  for 456 

sale  of  land  without 201 

WAYLEAVE : 

contract  to  grant  25 

WIDOW : 

of  vendor  when  a  party 90 

WIFE: 

capacity  of,  to  contract  with  husband  688 

compensation  for  interest  of 586 

consent  of 482,  482  n. 

contract  to  sell  estate  of 482,  588 

expectancy  of 679 

(And  see  Husband  and  Wife,  Married  Woman.) 

WILLFUL  DEFAULT: 

bailiff  accountable  on  footing  of 645 

DETERIORATION  ((?.  V.)  arising  from 592 

disentitling  vendor  to  benefit  of  stipulation  for  interest 643 

vendor  charged  with  rents  on  footing  of 644,  646 

WILL: 

contract  to  divide  or  charge  what  shall  be  left  by 678,  679 

to  make 105,  105  n. 

obtained  by  promise  to  dispose  of  property  in  a  particular  way 281 

title  depending  on  validity  of 439 

WINDING-UP: 

before  completion  of  contract  relating  to  shares 450,  671,  675 

transfers  after  commencement  of    676 

WINE  VAULTS: 

contract  to  take  lease  of 532 

WITHDRAWAL: 

application  for  shares,  of 140 

auction,  at 140  n. 

express  notice  of,  not  needful 141 

notice  to  treat,  of 141 

offer,  of 133,  140,  141  ?i. 


804  INDEX. 

PAGE. 

WITHOUT  RESERVE 347 

{See  Sale.) 

WORKS : 

accommodaliou 41 

contract  to  make  or  do 406,  409 

complete  * •. 409 

third  person's  direction,  to  be  done  according  to 169 

time  essential  in  relation  to •'ilB 

{And  see  Building  Contract.) 

WRIT : 

assistance,  of 559 

attachment,  of 556 

covenant,  of 6 

ex  communicato  capiendo 6 

form  of  indorsement  of 538 

."MAXDAMTTS  (g.  V.),  of 4 

ne  exeat,  of 553 

sequestration,  of 556 

YEARLY  TENANCY: 

dutj^  of  vendor  to  re-let  farm  subject  to 646 


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